"i'm the schmuck that landed on the taxiway:" faa enforcement and the compliance...

“I’m the Schmuck that

Landed on the Taxiway”

FAA Enforcement and the

Compliance Philosophy

Mark Kolber

Attorney, Commercial Pilot, CFI / CFII

Copyright 2008-2017 Mark J Kolber. All rights reserved.

Harrison Ford

“the agency has closed its inquiry into his

landing at Santa Ana Orange County

Airport on February 13 2017. The FAA

conducted a full investigation into the

matter, including an interview with Mr.

Ford, and determined that no

administrative or enforcement action was

warranted. Mr. Ford retains his pilot

certificate without restriction.”

— Steve Hofer, Ford’s attorney

Harrison Ford

the FAA’s new compliance philosophy was

a factor in the way it resolved the incident.

“The FAA did not conduct this as an

enforcement action; it gave him the

opportunity to participate in an interview.

He was not under any legal obligation to

do so, but voluntarily chose to. That is

consistent with the philosophy of

compliance.”

— Steve Hofer, Ford’s attorney

Harrison Ford Incident

“They did not treat him with kid gloves.

They were polite but their questions were

direct and pointed.”

“After the interviews, the FAA decided to

require Ford to participate in airman

counseling, and he was quizzed on the

material.”

– Steve Hofer, Ford’s attorney

Harrison Ford Incident

“he was candid and forthright about what

happened and sincere about nothing like

that happening again.”

– Steve Hofer, Ford’s attorney

The Compliance Philosophy

“some deviations arise from factors such as

flawed procedures, simple mistakes, lack of

understanding, or diminished skills”

“deviations of this nature can most

effectively be corrected through root cause

analysis and training”

FAA Compliance Philosophy

Order 8000.373, June 26, 2015

Who Am I?

Commercial Pilot Certificate

CFI-A / CFI-I

Instruct independently with pilots

in their own aircraft and with

Executive Flight Training at KTTA

FAASTeam Representative

Attorney licensed in North

Carolina, Colorado &

Massachusetts

AOPA Legal Services Panel

Disclaimer

General information only

Not legal advice

Cannot replace a personal consultation

with a professional when dealing with a

specific situation

Does not reflect the views of the

FAASafety Team, the FAA or any ASI

Don’t say I didn’t warn you!

10,000-foot View

How it all begins

FAA enforcement process

“Traditional” enforcement options

The new “compliance philosophy”

What it means and how it fits

How it all begins...

Pilot deviations noted by ATC

– Altitude busts are the most common

– “Brasher” warning

Ramp checks

Accident/incident investigations

Complaints by citizens

Complaints by other pilots and operators

“I Have a Number…”

The most common advice?

Unfortunately, it’s not that simple

It’s never been the only right answer

And perhaps more than ever!

Enforcement Process

FAA Enforcement Options

[Civil Penalties]

Certificate Revocation

Certificate Suspension

“709” Ride

Warning Notice or Letter of

Correction

No Action

Traditional FAA Actions

No Action after investigation

– Records expunged from FAA Enforcement

Information System (EIS) after 90 days

Administrative Actions

– Warning Notices and Letter of Correction (Not

considered a “violation” or “enforcement”

– Typically involves some sort of re-training

– Records expunged from EIS after 2 years


“709” Ride

– the Federal Aviation Administration may

…reexamine an airman… 49 U.S.C. § 44709(a)

– Must be “reasonable” based on the trigger

event

– Wise to get and log training

– Not considered enforcement or punishment –

treated as a “No Action.”

– Can lead to enforcement action and

revocation if refused or failed


Suspension for a stated period

– FAA Order 2150.3B guidance on penalties

Revocation

– May start over after a year

– Typically for the most serious violations• Drugs and alcohol use

• Fraudulent entries in logbooks, applications, etc.

• Repeated TFR violations

Lifetime record; Not expunged; reportable by PRIA


[Civil Penalties]



“709” Ride


Correction

No Action


[Civil Penalties]



“709” Ride


Correction

Compliance Action

No Action

“some deviations arise from factors such

as flawed procedures, simple mistakes,

lack of understanding, or diminished skills.

*** deviations of this nature can most

effectively be corrected through root cause

analysis and training”

FAA Order 8000.373, June 26, 2015

announcing the new policy


More open and transparent exchange of information

Create a “just culture.” Disclosure expected and appreciated

Focus more on correction than on certificate action and punishment

“Non-enforcement” methods to correct unintentional errors

Take appropriate action on intentional and reckless behavior

Most effective means of enhancing safety


Outgrowth of ongoing process

Pilots Bill of Rights (2012) = More work

Budgetary issues

Regulatory and Enforcement Consistency


Compliance Action

“A Compliance Action is intended as an

open and transparent safety information

exchange between FAA personnel and

you. Its only purpose is to restore

compliance and to identify and correct the

underlying causes that led to the

deviation.”

– FAA Compliance Philosophy and Airman

Rights Brochure

Compliance Action

The FAA:

– Early decision-making by under published

guidelines

– First choice for handling deviations unless

determines not appropriate

– Early Pilots Bill of Rights notification

• Often before a formal letter of investigation

– Use of compliance philosophy brochure

Compliance Action

The Airman is willing and able

– Acknowledges Responsibility

– Shares information to help determine root

cause

– Promptly implements corrective action

– Time, resources and ability to learn and

develop competence

Compliance Action

Risk-based approach to compliance

– Recognize and mitigate root causes

– Fixes to prevent recurrence

Focus on quick remediation

– goal is a 21-day turn-around

Follow-up validation

Compliance Action

Compliance Action

Initial contact will be informal or formal

– More often formal than not

On-the-spot corrections

Counseling

Remedial training – most common

– Written agreement between FAA and airman

Implemented by FAASTeam Program

Managers

Compliance Action

Inappropriate for Compliance Action:

– Intentional or Reckless Deviations

– Unwilling or Unable to Comply

– Law enforcement matters/criminal behavior

– Medical certificate falsification

– Commercial operator drug testing programs

– FAR 91.15 “Motor Vehicle Action” reporting

– HazMAT violations

Compliance Action Pitfalls

More rights often means more formality

Does not rule out enforcement action

– refusal or inability to participate or comply

– You may have already admitted a violation!

Does not rule out a 709 Reexamination

– An area with a lot of discretion

– Failure results in revocation

ASIs and Program Managers with different views

– Discretion in choice of action

Can the process be the punishment?

FAA Legal Counsel review and rejection

Prioritization of suspension, revocation

and civil penalties for “inappropriate” acts

More use of the criminal process option for

fraud


in Practice

Examples

Harrison Ford

Presidential TFRs

Mechanics


in Practice


It works but it takes time to create a new culture

– Not everyone is on board yet

– Discretion means personality

“The process is the punishment”

No requirement to speak immediately

May require admission of a violation

Still time for advice

– And maybe more reason to!

Compliance PhilosophyInformation Sources

www.faa.gov/about/initiatives/cp/

FAA Safety Briefing, Jan/Feb 2016www.faa.gov/news/safety_briefing/

Compliance PhilosophyInformation Sources

Q&A

You ever been in a cockpit before?

Other questions or copies of this

presentation?

[email protected]

www.mkolberlaw.com

www.facebook.com/mkolberlaw

"i'm the schmuck that landed on the taxiway:" faa enforcement and the compliance...

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