A discussion of the FAA's Compliance Philosophy for pilots and mechanics by a practicing aviation lawyer. Presented October 2017. The full video from which the unviewable clip in slide two is taken is available at https://youtu.be/tzy9jCFk0Iw

1. “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.

4. 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

5. 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

6. 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

7. Harrison Ford Incident
 “he was candid and forthright about what
happened and sincere about nothing like
that happening again.”
– Steve Hofer, Ford’s attorney

8. 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

9. 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

10. 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!

11. 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

12. 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

13. “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!

14. Enforcement Process

15. Enforcement Process

16. FAA Enforcement Options
 [Civil Penalties]
 Certificate Revocation
 Certificate Suspension
 “709” Ride
 Warning Notice or Letter of
Correction
 No Action

17. 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

18. Traditional FAA Actions
 “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

19. Traditional FAA Actions
 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

20. FAA Enforcement Options
 [Civil Penalties]
 Certificate Revocation
 Certificate Suspension
 “709” Ride
 Warning Notice or Letter of
Correction
 No Action

21. FAA Enforcement Options
 [Civil Penalties]
 Certificate Revocation
 Certificate Suspension
 “709” Ride
 Warning Notice or Letter of
Correction
 Compliance Action
 No Action

22.  “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
Compliance Philosophy

23.  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
Compliance Philosophy

24.  Outgrowth of ongoing process
 Pilots Bill of Rights (2012) = More work
 Budgetary issues
 Regulatory and Enforcement Consistency
Compliance Philosophy

25. 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

26. 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

27. 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

28. 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

29. 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

30. Compliance Action

31. 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

32. 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

33. 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?

34.  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
Compliance Philosophy
in Practice

35.  Examples
 Harrison Ford
 Presidential TFRs
 Mechanics
Compliance Philosophy
in Practice

36. Compliance Philosophy
 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!

37. Compliance Philosophy
Information Sources
www.faa.gov/about/initiatives/cp/

38.  FAA Safety Briefing, Jan/Feb 2016
www.faa.gov/news/safety_briefing/
Compliance Philosophy
Information Sources

39. Q&A
You ever been in a cockpit before?
Other questions or copies of this
presentation?
mjk@mkolberlaw.com
www.mkolberlaw.com
www.facebook.com/mkolberlaw