AOPA Pilot Magazine - February 2016 - 28

PILOT COUNSEL

FAA's new compliance
philosophy

BY JOHN S. YODICE

Promising language for pilots

JOHN S. YODICE is an

aviation attorney,
pilot, flight
instructor, and
longtime aircraft
owner.

FOLLOWERS OF THIS COLUMN know that over the years I
have devoted attention to the FAA's enforcement activities, particularly those seeking to suspend or revoke a
pilot's certificate. I have especially concentrated on counseling pilots and others of the procedural rights that the
law affords them in defending against such enforcement.
At the same time, I must be careful not to imply that
alleged violations against pilots are the norm. They are
not. The few who find themselves a subject of an FAA
investigation very often are surprised by it, and ill prepared to deal with it. In my experience the vast majority
of alleged violations are first-time, inadvertent incidents
in which there was no serious compromise of aviation
safety. Pilots, virtually all of whom are safety conscious
and disposed to comply, are surprised (again) to find
that such matters are not easily resolved with the FAA.
The problem has been that the system often is too
heavy-handed. After more than 20 years, the FAA is still
suffering from the bad reputation it earned in an unfair
treatment of Bob Hoover, acknowledged to be one of the
greatest pilots and airshow performers of his (and our)
time. To those who have known him, he is a gentleman
in the truest sense of the word, not at all inclined to violate flight rules or to be resentful of authority. The FAA
may never fully recover its reputation from its unfair
and heavy-handed enforcement that denied Hoover a
medical certificate for nearly two and a half years.
Admittedly, this is an extreme example. So, I must
add that most FAA employees are dedicated civil servants. Like us, many are pilots and aircraft owners,
but they function in a system that tends toward this
heavy-handedness.
Which brings me to the newly announced FAA
compliance philosophy. The new philosophy appears
in several lengthy and high-sounding documents from
which specifics are difficult to cull out. I prefer to read
the language, buried in these documents, that promises a "kinder and gentler" FAA. But I must confess
that it also could be read as merely a reshuffling of FAA
enforcement personnel and offices with little or no significant effect on the pilot community. Time will tell.
For now, I revert to my role as pilot counsel. I counsel pilots and owners to be aware, and take advantage,
of what appears to be an increased opportunity to
resolve alleged infractions early in the FAA investigation

28 | AOPA PILOT February 2016

process-before the matter is referred to an FAA lawyer for legal enforcement action such as certificate
suspension or revocation, including an indelible black
mark on one's record at the FAA that could have serious consequences.
Pilots are now able to argue for the new "compliance action" (short of administrative, legal, and criminal
enforcement action). We must dig out the best language
buried in these documents to support the argument.
According to the new philosophy, "When deviations from
regulatory standards do occur, the FAA's goal is to use the
most effective means to return an individual or entity that
holds an FAA certificate, approval, authorization, permit,
or license to full compliance and to prevent recurrence."
It goes on to amplify: "The FAA recognizes that some
deviations arise from factors such as flawed procedures,
simple mistakes, lack of understanding, or diminished
skills. The agency believes that deviations of this nature
can most effectively be corrected through root cause
analysis and training, education, or other appropriate
improvements to procedures or training programs for
regulated entities, which are documented and verified
to ensure effectiveness." Promising language to use.
The FAA defines the outer limits: "The FAA views
those intentional or reckless deviations from regulatory standards, as defined in the agency's safety
oversight guidance, or deviations from regulatory standards that otherwise present an unacceptable risk to
safety, as posing the highest risk to safe operation of the
[National Airspace System], and thus requiring strong
enforcement."
I prefer to read this language as presaging a kinder
FAA for most alleged infractions against pilots. Again, time
will tell. Time also should cure some lingering problems,
such as the apparent conflict between the philosophy in
the Pilot's Bill of Rights requiring notice to pilots that
anything they say to the FAA may be used against them,
and the requirement for cooperation in order to qualify for a "compliance action." Time also should cure the
apparent conflict between the requirement to document
"compliance actions," and an FAA policy we sought and
obtained to expunge minor yet potentially damaging violation records after a reasonable period of time. AOPA
WEB www.aopa.org/pps

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Table of Contents for the Digital Edition of AOPA Pilot Magazine - February 2016