July 1, 1990
By John S. Yodice
Allowing a pilot to take additional training instead of suspending the pilot's certificate for a minor infraction of the air traffic rules is something that AOPA has been advocating for a long time. It doesn't seem to us to make sense for the FAA to ground a pilot for 30 or 60 or 90 days and expect after that time that the pilot will be safer.
Our experience in counseling AOPA members is that a very high percentage of violation cases brought by the FAA involves inadvertent first offenses where safety is not seriously compromised. These pilots, and in fact all responsible pilots, believe in strict compliance with the rules. But our National Airspace System and the rules that apply in it have become so complex that even the most well-trained, conscientious pilot can be drawn into an inadvertent violation.
Even so, until the current FAA administrator, James B. Busey IV, came along, strict enforcement was the rule of the day. Every infraction, even though most of them were minor, became a "federal case." There was very little discretion allowed to FAA field inspectors to dispose of cases on some reasonable basis.
When Busey became FAA administrator in July of last year, he made a special effort to learn about the concerns of the aviation community-and he heard a great deal of complaint about the wisdom and fairness of the FAA's enforcement policies and their negative effect on safety. He ordered a review of these policies, which included public listening sessions around the country, several hosted by AOPA. The review confirmed that many problems existed.
The FAA looked for remedies and, with input from AOPA and others, came up with a Busey announced a new FAA compliance and enforcement policy adopting these recommendations. One of the major changes he announced is to give inspectors in the field the discretion to allow remedial training in place of a certificate suspension or a fine.
To implement this change, on May 18 Busey approved a bulletin to FAA inspectors and lawyers formalizing the availability of remedial training as an alternative to legal enforcement action. He made it effective immediately and directed that it be considered in any open case in which legal enforcement action had not yet been started by the issuance of a notice of proposed certificate action or civil penalty. He directed that it be considered for any apparent violation in which an investigation had not begun by March 5, the date on which he announced the new policy.
The bulletin does not exclude remedial training as an option in cases where legal enforcement action had begun before May 18, but the farther along the case is in the enforcement process, the less likely the FAA will consider remedial training as a viable alternative.
There is one hooker in the remedial training program that will cause a problem for pilots who conscientiously believe they did not commit a violation. The program requires an admission of violation. We doubt that the administrator intended this. It is not in his announcement. It is not in the recommendations. And it was not in any of the discussions and documents leading up to the recommendations. The FAA chief counsel has opposed the remedial training alternative, and this may be a lingering manifestation of that opposition. Later in this article, we will address this problem and offer suggestions on how to cope with it.
Here is how the remedial training alternative is supposed to work.
An inspector is routinely assigned to conduct an investigation whenever an apparent violation comes to the attention of the FAA. Under the new program, the inspector, early in the investigation, will consider whether remedial training is more appropriate than a legal enforcement action.
As part of the investigation, an inspector will typically send a letter of investigation to the pilot involved, asking for the pilots'-side of the story. Now, under the new program, if the inspector believes that remedial training is appropriate, the inspector will include in the letter a statement that the pilot may be allowed to participate in the remedial training program. The letter will say that if the pilot wishes to participate in the program, the pilot must respond to the letter within the time specified (usually, 10 days), must express an interest in the program, and must cooperate in the investigation. If, as the investigation goes along, the inspector receives an appropriate response from the pilot, and the inspector decides that remedial training may be appropriate, the inspector will deliver a copy of the investigative file to an FAA accident prevention specialist (APS). Ordinarily, this will be an APS within the flight standards district office conducting the investigation, but if the pilot lives within a different jurisdiction, it might be the FSDO where the pilot lives.
The APS will conduct an in-person meeting with the pilot to confirm whether remedial training is appropriate and will propose a course of study. The meeting should concentrate on remedial training and should avoid the merits of the underlying incident.
If the pilot and the APS agree on a course of study, a letter of agreement will be signed by the pilot and a supervising APS specifying the terms and conditions of the remedial training program. It will contain a completion date that will be within 120 days after the FAA became aware of the apparent violation.
Within the time specified in the training agreement, the pilot must provide the required evidence that the training has been completed. When the APS is satisfied that the terms and conditions of the remedial training course and objectives have been met, the APS will notify the investigating inspector and return the file. The investigating inspector will then send to the pilot a Letter of Correction containing a statement that the required remedial training has been satisfactorily accomplished and will close the case. The Letter of Correction will be made a matter of record for two years, after which the record will be expunged.
All expenses for the prescribed training must be borne by the pilot. FAA personnel will not conduct any of the remedial training. Of course, the program will not be available in all cases. It will not be available in cases that the FAA believes involve deliberate or grossly negligent conduct or that show that the pi1ot is not qualified to hold a pilot certificate. It will not be available to airline and commuter pilots (but it will be available to other pilots who fly commercially as, for example, flight instructors, corporate pilots, on-demand air taxi pilots, and so on).
A past violation history is not automatically disqualifying. However, remedial training will generally be appropriate for pilots with no record of violations. In considering a pilot's past violation history, the FAA will not only consider certificate suspension and civil penalties, but also administrative actions such as warning notices and letters of correction. The FAA will consider civil penalty compromises and settlements even without a finding of violation. And the FAA will consider cases where a certificate suspension or civil penalty was waived under the Aviation Safety Reporting System.
Now to the problem. In our experience in counseling AOPA members who have received letters of investigation, we have found that many of them firmly believe that they did not commit a violation. Depending on the inspector involved, remedial training will probably not be available to such a pilot. The sample training agreement attached to the FAA bulletin requires that the pilot acknowledge the violation of the regulations. The bulletin itself makes dear that a pilot may not both contest the alleged violation and participate in the program.
The first time the problem is presented to the pilot is the letter of investigation, which tells the pilot that the remedial training program is not available unless the pilot fully discloses the facts and circumstances of the apparent violation. Yet at this point, there is no guarantee that remedial training will be offered to the pilot. At any stage in the investigation and at any time in the negotiation of the course of study, the FAA inspector or APS can decide that remedial training is not appropriate. So the effect is that the pilot must disclose facts that could be incriminating before the pilot is assured of remedial training. The letter of investigation says, "Information provided to the FAA, including the response to this letter, may be used in determining whether remedial training is appropriate. In addition, if remedial training is not afforded, or if the prescribed remedial training program is not satisfactorily completed, it may be used in subsequent legal enforcement action."
In the past, we have offered guidance on if and how a pilot should respond to a letter of investigation ("Pilot Counsel: Enforcement: Responding To the FAA," January Pilot). The program as currently constructed complicates this guidance for the pilot who honestly believes he/she did nothing wrong yet would like to take advantage of the remedial training option. The pilot cannot lie about his or her belief. The pilot can respond to the letter of investigation expressing an interest in the remedial training option and either deny the allegations or be noncommittal about the charges. If the inspector strictly applies the bulletin, the remedial training option will not be considered. If the inspector exercises his or her judgment and discretion in determining whether the denial is bona fide or is evidence of a bad attitude, perhaps at a face-to-face meeting, the inspector can proceed accordingly, offering remedial training in the former situation but not in the latter. If the inspector has some reservation about the appropriateness of remedial training, the inspector may be satisfied that there will be a face-to-face meeting with the APS.
In the meeting, the APS will be judging whether the pilot has a constructive attitude toward compliance and whether remedial training is appropriate. The FAA bulletin makes a clear division between enforcement activities conducted by the investigating inspector and the remedial training activities conducted by the APS. While the pilot's response to the inspector's letter may be used as evidence in a legal enforcement action, the information provided to the APS by the pilot will not be used as evidence. The pilot may freely discuss with the APS the facts and circumstances of the incident as they relate to the development of an appropriate training program, and the APS can make a judgment about the pilot's attitude and the appropriateness of remedial training.
In summary, the remedial training program should be a beneficial option for pilots and, at the same time, improve safety and achieve the FAA's compliance and enforcement objectives. The pilot who believes he/she did not commit an infraction but who-wants to take advantage of the program will have to take the risk that expressing his/her belief will foreclose the pilot from the program.
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