Have you ever been the subject of an FAA enforcement action?
Depending on how this question is answered in an interview for a professional flying position, a career could be stopped short. Some companies have a zero-tolerance policy for regulatory transgressions. Other aviation employers have a more flexible approach, depending on when the violation took place and the gravity of the situation.
The prospect of being tagged with an enforcement action, a resulting certificate suspension or fine, and an indelible black mark in the airman file prompts a certain level of anxiety toward FAA inspectors. Anyone who has been in the flying game for more than a few years can remember the “hang ’em high” mentality that seemed to characterize the FAA’s way of doing business back in the day. Bust a terminal control area? Sixty-day suspension. Forget your pilot certificate on your dresser back home during a ramp inspection? You were in big trouble.
The pendulum began moving away from those extreme measures over the past few years when, as a result of the FAA’s enforcement decision process, the agency’s response to an infraction was measured by the safety risk involved. Inspectors would use a risk-assessment matrix to determine the potential safety risk of an event and, if low, they could conclude the action with counseling or an administrative letter of warning.
In 2015, the FAA announced a new philosophy, documented for flight standards district office employees and aviation safety inspectors in Notice N 8900.323, “Flight Standards Service Compliance Policy” (http://fsims.faa.gov). Inspired by the safety management system (SMS) concept, in which National Airspace System users are encouraged to come forth without retribution and make full disclosure of errors that can affect safety, so that all can learn from a mistake, the FAA has embarked on a laudable approach to regulatory compliance. It acknowledges a simple fact: Humans make unintentional mistakes, and putting an errant pilot on the bench for 30 days does little to mitigate the error and associated risk.
The notice explains that its compliance philosophy is intended to support transparent exchange of data, help ensure compliance with regulations, and help identify hazards and manage risk. While intentional or reckless deviations from regulatory standards require strong enforcement, according to the policy, other deviations warrant a different response:
“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.
“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. However, reluctance or failure in adopting these methods to remediate deviations or instances of repeated deviations might result in enforcement.”
The message to inspectors is clear. Rather than an enforcement action as a go-to response, “possible remedies for unintentional regulatory noncompliance include, but are not limited to: open communication, training/education, on-the-spot corrections, counseling, and remedial training. The inspector documents such training and improvements and verifies that those procedures have effectuated compliance. In the case of intentional, reckless, or criminal behavior or an uncooperative offender, the inspector should use enforcement tools: administrative actions or legal enforcement action.”
The notice includes examples of how an inspector might handle certain infractions, including this one, which would have been a big problem years ago:
“During a routine ramp inspection conducted after a flight, an inspector asks a private pilot to produce his certificate (per Title 14 of the Code of Federal Regulations Part 61, �61.3[a]). The pilot is unable to locate his certificate, which he believes to have been on board the aircraft prior to the flight. The airman now speculates that his certificate may be lost. The inspector makes note of the information for the airman and flight. Upon returning to the office, the inspector checks the airman information, noting that the airman does hold an appropriate certificate and has no violation history. The inspector sends the airman an email with information from airman online services on obtaining a new certificate and how to request temporary exercising privileges. The inspector closes the finding of the deviation with written counseling.”
Since October 1, 2015, a rational approach based on the new compliance philosophy now fixes the problem without undue hardship. The good news for career-oriented pilots is that in this case, there is nothing in the airman file that shows an enforcement action as a result of noncompliance with FAR 61.3(a).
Doubt may linger in the minds of some pilots who remember the FAA’s hard-line tactics of yesteryear and continue to regard inspectors with suspicion. If this enlightened mode of operation takes hold as intended, however, our relationship with aviation’s regulators should advance to a healthier state, while enhancing safety further. Sounds like a win/win.
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