the FAA's Chief Counsel
and Deputy Chief Counsel
This is an edited transcript of meeting held August 17, 1999, at FAA Headquarters in Washington DC. Representing the FAA were Chief Counsel Nicholas Garaufis, Deputy Chief Counsel James Whitlow, and Eliot Brenner from FAA Public Affairs. Representing AVweb were Editor-In-Chief Mike Busch, Executive Editor Jeb Burnside, and Aviation Law Editor Phil Kolczynski.
NOTE: Following this transcript is AVweb's interview with John and Kathleen Yodice.
AVweb: This meeting was prompted by a brief conversation we had with the Administrator last April in Phoenix at AS3 during which she told us of a meeting that the Chief Counsel was about to hold in San Diego with some of the aviation trade associations to discuss various legal issues of concern to industry. Could you tell us why you called that meeting, who was there, and what transpired?
Nick Garaufis: Well first of all, thanks for coming. I want you to know that I've chatted with the Administrator about the efforts that you're making at AVweb to provide a better understanding between the FAA and the communities that it serves. I think that's a laudable objective, and I think that you're achieving a good part of that, and you're to be congratulated for that. I would also say that any time you set out to do something like that, it takes a lot of effort on the part of everybody. Certainly you've put in a lot of effort, and I know that the Administrator has done a great deal to work through issues with you and the rest of the aviation community. Her objective, as you're well aware, is to provide better communication which leads to a better understanding.
I share her objectives, and it's important that we develop a greater understanding with the part of the aviation community that we work with most directly in the Counsel's office. That part of the community is the aviation legal community, if you will. Hence, I decided early this year to call an outreach session with the aviation legal community — the private bar which represents the various interests in U.S. aviation: general aviation, the airlines, the manufacturers, and every other element of the industry that has a role in the work that we do in the Chief Counsel's office.
We had a very good meeting on May 25 and 26 in San Diego. It was a meeting of lawyers, and we invited all the different constituencies to send their attorneys to this meeting so that we could, in effect, let our hair down and talk about what their concerns are, and to develop a better communication among ourselves. The Administrator endorsed that outreach, she was very enthusiastic about it, and I think that it as very productive.
Let me first say who was there, and then we can go into any details that you would like to touch upon. We had with us legal representatives of general aviation — Jack Harrington for the EAA, John Yodice and Kathleen Yodice for AOPA — in total, we had almost two dozen attorneys from the private bar. Some represented the airlines and other aviation interests. It came to about two dozen leading aviation attorneys throughout the country, and they came with different issues.
The main purpose of the meeting was to sit down with the leading enforcement lawyers in the FAA from around the United States — from our enforcement law division in Washington and from the nine regions — to discuss how we could work better, and to understand how we could bridge any disagreements and misunderstandings that we might have. We spent two days having discussions. Presentations were made on various subjects, from fractional ownership to informal conferences, and ran the gamut from the interests of large corporations to individual certificate holders who fly for pleasure. We did take back some IOUs to take a look at a few issues, and it was worthwhile.
The most important outgrowth of the meeting was that we agreed that we would not only do our follow-up, but that we would also meet semi-annually to discuss the developments since the last meeting — what have we done to address some of these issues? — and also to address new issues that might arise before they became causes celebres. This will provide an opportunity for new issues to be discussed. I think that's really the key element here: that we have an ongoing open discussion of issues of interest to the aviation bar and to their clients.
So that was the purpose of the meeting. It was, I believe, generally successful, and we are looking into various subjects that were addressed at the meeting.
AVweb: Can you elaborate on those subjects? Was there any sort of report or memo written after the meeting that would summarize what was discussed, what was agreed to, and what IOUs you took back?
James Whitlow: We haven't done that yet. We'd planned on sending something out to the group. Some of the commitments we made, though, are things that we have been working on. One of them that I'd like to mention specifically has to do with the reporting requirements for qualifying motor vehicle offenses. One of the things we were told was that a lot of pilots were not aware of the need to report on certain things like DWIs, DUIs, drug-related and alcohol-related offenses — that they weren't aware of the need to report those independent of their medical application. We received a very strong recommendation that the FAA do more of an education effort. You saw some of that at Oshkosh because we had some flyers there and some posters. We're trying to see if we can work out something more specific, like a notice.
I think this is a good example of the kind of thing we talked about at San Diego. Everybody in the room was interested in promoting aviation safety, but there were different perspectives. The perspectives they brought to us on things like informal conferences gave us the chance to perhaps modify some of the things we're doing.
Nick Garaufis: One of the IOUs we took back was that we would examine our sanction policy with regard to non-reporting of DUIs to determine whether we believe that our sanction policy was balanced, and was being enforced even-handedly throughout the agencies. I'm very sensitive to the need for an even-handed enforcement approach. I do policy issues more than individual issues as Chief Counsel — James [Whitlow] is really the chief enforcement lawyer of the FAA. In terms of our enforcement policy, it's my wish and my objective to have an even-handed enforcement posture throughout the Office of the Chief Counsel, so that to the greatest extent possible there is an understanding on the part of FAA lawyers — whether they are on the west coast, the east coast, or anywhere in between, or in Alaska — that the way we enforce our regulations is considered consistent, and that certificate holders feel confident that they will be treated even-handedly wherever in the country they are located. That's very important to me. The more we achieve in that area, the greater the confidence will be on the part of certificate holders that they are being treated fairly by the FAA.
James Whitlow: That fed into the discussion we had about informal conferences. There was kind of a split between the folks who usually represent air carriers, airline pilots, engineers and technicians — they had a view of the informal conference that was a little different from what the general aviation people wanted to see in informal conferences. Both views were a little different from the way we viewed them.
We've always viewed informal conferences as the certificate holder's opportunity to make their presentation to us. In the federal system, you have the same thing with personnel cases — it's the opportunity for them to talk to the person who's proposed the action and who is going to make a recommendation. You go into it thinking that your job is to listen, and when you're asked questions, they're questions that are meant to clarify things, but that your job is to sit, listen, and to take back what they say.
The general aviation folks were clear — as were the air carrier folks — that they wanted this to be more of a two-party exchange of information ... kind of a discussion thing. Not in terms of settling, but in terms of, "What did I actually do wrong? Why do you think this was wrong? What could I have done better? Where can I improve?"
The air carrier folks sounded like they were looking for more like an ADR-type process. They also wanted us to focus more on who we'd have at those conferences, and to have people from our office who were prepared as attorneys, and from ADR who were prepared as technical people, to have dialogs about, "What happened? Why do you think it was wrong? What should happen differently in the future?"
It was an eye-opener for me, because I'd always thought of the informal conferences as being more of a presentation that we would hear, and then maybe settlement discussions. They were focusing more on an exchange of information, and maybe us actually telling them what we think they did wrong, so that they could do something different in the future.
But perhaps the biggest surprise to me was how much energy there was on fractional ownership. There really was a lot of interest and energy on fractional ownership, even though that's not really an enforcement issue at this point. It was an opportunity for us to hear from some of the different elements — how they felt about the NBAA guidelines, what they were proposing in terms of operations that didn't meet the NBAA guidelines. The first two hours or so of the session were devoted to fractional ownership issues.
AVweb: Why were those legal issues, and why did they come up at this particular meeting?
James Whitlow: Fractional ownership started off in some people's minds as a simple legal issue, just an interpretation of the rules. It became clear as we got involved in it, and as some of the attorneys representing the management companies got involved in it, that there were a lot of overriding policy issues. So it's being discussed right now. The commitment that the Administrator has made is that before she makes her decision, she will have a couple of follow-up meetings with entities and individuals. But there's still a lot of discussion right now as to where you should go philosophically. There are also some discussions about how it will affect other parts of the aviation community, such as charter services. The attorneys who were there, even those who were not specifically involved in representing management companies, were all interested in hearing the presentations and talking about fractional ownership.
AVweb: Is there a time frame set for resolving this issue?
James Whitlow: I think we have scheduled some of the meetings with the CEOs for sometime in September.
AVweb: CEOs of the management companies?
James Whitlow: At least the CEOs of the management companies. We might want to expand that list a little bit. I believe what we have said is the middle or end of September — I'm not sure on those dates — but that's what we're trying to work toward. We'd like to bring this thing to closure as quickly as possible.
Nick Garaufis: We also had a presentation and discussion on the charging of "careless and reckless operation" in addition to other operational charges. There was concern on the part of industry representatives that we charged "careless and reckless" automatically — that the FAA attorneys would simply add it to any kind of charge of an operational violation. We took back the IOU to examine those cases — there are many cases that we need to look at — where we charged "careless and reckless operation" as an ancillary charge, and to determine whether we ought to be implementing some new procedures when determining whether to use that as a charge. I think that it's useful for us to go back and do that kind of an analysis, and I was pleased to make that commitment to the industry attorneys who were in attendance.
We don't have that much time to do it before the next meeting. We really need to have answers for the group when it reconvenes at the end of this year or the beginning of next year. We've made a number of these commitments, and we need to fulfill them.
AVweb: Will there be anything published after these meetings — which apparently will happen on a regular basis — so that those who didn't attend can find out what transpired at the meetings?
Nick Garaufis: The participants are at liberty to discuss what they discussed at the meetings, and what they got out of the meetings. I think we can be most productive in re-examining our procedures, and to the extent that we want to change them, announcing the changes that we're going to make. It's a matter of doing our due diligence, fulfilling our commitment to examine our procedures and reflect on the criticisms, and then making changes where appropriate and announcing those changes to the industry. It's one thing to hold the meeting, and yet another thing to complete the process of review and reaffirmation to the extent we reaffirm our procedures, and revision to the extent we revise our procedures.
AVweb: In terms of re-examining your own procedures, did any body bring up the "Hoover bill" or re-examination of internal procedures for emergency revocations during the meeting in San Diego?
Nick Garaufis: There was a discussion about the issue of emergency orders of suspension or revocation, and the commitment we gave was quite apart from any legislative requirements that might be imposed upon us in the future. My commitment was that we would look at the way in which we conduct our examination of certificate holders where we are considering issuing an emergency order of some kind. It's my concern that our procedures not only be fair and legal, which I believe that they are, but there must also be a perception that we are acting carefully, methodically, and in a balanced way to do substantial justice, and at the same time protect the general public and everyone else who has an interest in the safety of aviation.
So what I promised to do was to go back and look at cases where we have issued emergency orders to determine whether it might be useful — as was suggested at the meeting — to provide some sort of advance notice of our intention to issue such an emergency order with some specificity of the violations that would cause us to issue that order, so that the certificate holder would have time to respond to the specific allegations. That was a commitment I made at the meeting, and we are examining that. We put together a committee within AGC [the Office of Chief Counsel] to look at that.
In addition, of course, you know about the Inhofe legislation in the Senate, there's also legislation in the House. I think that irrespective of any procedural changes that might be enacted by Congress, we need to look at this from the standpoint of how we do business with our clients in Flight Standards and the attorneys in the FAA regions and at headquarters so that we can make our procedures better to the extent that we need to do that. That was my commitment to the group in San Diego, and we are working on it.
AVweb: If it were done, this would be some sort of a letter that would be subsequent to the Letter of Investigation?
Nick Garaufis: It could be that. It could take some other form. What I've asked for is an analysis of recent case where emergency orders have been issued, and recommendations as to how we might establish procedures in advance of the issuance of emergency orders. These can be agency procedures, they don't need to be statutory procedures. In fact, I think it would be useful for us to develop our own procedures to the extent that we feel we need them.
Now I will point out that the administration has a position on the legislative proposal. Whatever the adminstration's position is, that stands for itself and you can discuss that with other folks in the agency and at the department. But I think that my IOU — what I'd like to do — is to take a look at how we actually handle these cases to see if we can do it perhaps a little differently in order to afford certificate holders some additional notice of our intentions. But that's an open issue. We've made a commitment to look at it, we are doing that within AGC, and we'll be consulting with Flight Standards on it as well.
AVweb: In addition to the notification issue, isn't there an issue that involves trying to get some sort of uniform standards throughout all of the regions as to what sort of infraction calls for an emergency order? For example, the Western-Pacific Region has the highest emergency revocation record of any regions, at least according to the GAO report time frame up through 1997. I think the perception of fairness that Nick alluded to is really important when it comes to emergency revocations for two reasons: first the perhaps disproportionate number of emergency revocation actions in certain regions, and second the amount of time that elapses during which the FAA investigates matters and then decides to take emergency revocation action. That perception in the private bar and among aviators is really raw.
If we recall the GAO report numbers correctly, it's approximately 25% of all revocation actions in the Western Region and the Eastern Region are emergency revocation actions. And yet the interesting statistic was that the Southern Region has more GA pilots than any of the other regions, so we don't think it's a simple linear relationship between the number of pilots and the number of revocations. There are more factors at play here. The GAO study only went up to 1997, so we're really curious to see what actions have been taken in 1998 and 1999.
The other thing that was interesting is that the study suggested that the average emergency revocation action took four months of investigation before the revocation was submitted to the airman. And yet, the first indication the airman had that there was going to be an emergency action came when it was taken.
Nick Garaufis: In our effort to examine this, we're looking at all the regions, and where we see that there may be some disproportionate percentages, I would then want us to look at those regions to see whether there are some unusual circumstances which resulted in those numbers. There may be some circumstances, there may be a policy in those regions on the part of Flight Standards in consultation with the Office of the Chief Counsel as to what constitutes a violation which necessitates an emergency order of suspension or revocation. To the extent that we can even out our policy, if there are distinctions being made in one place or another, this examination will help us do that. I won't reach any conclusions in advance of looking at these different locations, but I think the whole idea behind the enforcement outreach and the subsequent studies that we're doing is to try to maintain a national standard which people understand and which we then implement on an ongoing basis. I've made note of those two regions, and I'll ask our team to look at those two regions so we can get some answers to your question.
James Whitlow: Let me mention the discussion we had at San Diego on the interpretive rule [on pilot readbacks to ATC]. I think that the Administrator tried to make it very clear at Oshkosh that the interpretive rule was not an attempt to change anything as far as we were concerned. The rule itself talks about the line of NTSB cases that were coming out that appeared to us to be inconsistent with what everybody has understood to be the relationship between controllers and pilots for years. I mean, it's a mutual relationship, both sides have a responsibility to hear and communicate clearly. If you look at the cases that were cited in the notice, the board seemed to be going away from that.
The interpretive rule was not intended to start something new or to create a new category of violation. It was the process that we could use legitimately to make clear to the board that the relationship that they should view now is the same as it has been for the last three or four decades. I don't think you're going to see a change in the way things are being charged. You're not going to see new types of enforcement actions. But as the Administrator said, the interpretive rule was to make it clear that what we have all understood to be the relationship between pilots and controllers in terms of communication is the standard that the board should apply.
You know, one of the problems that you have if you try to do a summary of a meeting is that you find yourself in the position of trying to characterize how other people felt about what it is that happened at that meeting.
Nick Garaufis: I think it would be useful for you to speak to some of the folks who where there, if they wish to discuss their impressions of the meeting and what was achieved on those days. It's for us to try to develop solutions to some of these issues between now and the next time we meet so that we have something to report back then, or before that next meeting. I think James' point is well-taken that we have our perception of what happened there, and then there will be other people who have their own perception. They may put greater emphasis on certain issues and discussions that we put on those issues and discussions. So I would invite you to speak to some of those folks as well.
AVweb: Prior to the San Diego meeting, we had asked that Phil Kolczynski be allowed to attend the meeting on AVweb's behalf, and at first Mrs. Garvey said yes, but later it was decided that AVweb's attendance wasn't appropriate for some reason. I do think it would be useful if someone was there — it should be an aviation attorney — who was there to take notes and report on what transpired.
Eliot Brenner: If we did that, then I've got to do AvWeek, then I've got to do Daily, ...
AVweb: That was the argument at the time. But clearly the people who participate in a meeting like this are going to be only a tiny fraction of the interested parties.
James Whitlow: I think you have to remember, though, that this is not just FAA, we also are inviting private attorneys in to have the kind of discussions you don't what to have those kind of limitations on. For better or for worse, having the press there changes the nature of the conversation. Not only what we can say, but what they can say.
I don't want anybody thinking that we wanted to have this secret meeting where people got together. The major focus of this was to set it up so they would feel free to talk to us as well as our folks feeling free to talk to them. It's hard to get a group of attorneys together and have that kind of discussion without them being worried about whether you're going to use what I'm saying later on against me.
Nick Garaufis: I've been an attorney in private practice, and you approach a discussion where it's "on the record" in the sense that every word is being written down differently from a discussion where you can be fulsome in your description of your views, and at the same time recognize that what you say is not going to potentially disparage a client. One of the benefits of a meeting like this is that the attorneys — both the FAA attorneys and the private attorneys — were able to in effect "let their hair down" and talk pretty darn candidly about each other's approach to the enforcement process.
There are attorneys in the private bar who represent client interests and make arguments which they know are thin, and there are attorneys at the FAA who might on occasion prefer that their client would approach a problem in a different way. But we have our clients, and they have their clients, and so we try to represent our clients' interests in the best way we know how.
This meeting afforded everyone the opportunity — unique in the recollection of all the people who were at the meeting — to actually sit down and talk about what's on their minds, and the best way of doing that is the way we did it, I think. The sense I received after the fact from a number of the people who attended was that because they were able to be candid and open and pointed in their comments and criticisms, it had greater benefit. One of the great benefits was that I had all of the chief FAA enforcement lawyers from all over the country sitting in the room together, listening to the criticism at one time. It wasn't someone's talking to someone in Western-Pacific, and then someone's talking to someone in New England. It's everybody there at the same moment hearing the same thing.
My charge to the FAA group was that we need to address these issues constructively and promptly, and where we need to make changes, those changes must be made. I think the message was received pretty clearly.
AVweb: Is the next follow-up meeting scheduled?
Nick Garaufis: No, I assume it will probably be in January, probably about the same time as the ABA Air and Space Law Forum meeting.
AVweb: Here in Washington?
Nick Garaufis: I would expect the next meeting would be here.
AVweb: What changes have occurred as a result of the meeting?
James Whitlow: Well, you can see immediately the emphasis that we did put on the driving-related offenses at Oshkosh, and what we're going to try to follow up doing. We talked also with AVR — Flight Standards — about some of the things that these folks proposed that we do on the informals. One of the areas we really couldn't agree with them on was the idea of sending people out again, rather than having them at headquarters or by telephone. There are just a number of budget considerations so we couldn't do that. We have done our review on such things as the emergencies, the careless and reckless. Fractional ownership was more of a discussion without commitment at that meeting, because everything else was on-track. I would like to think there was a lot more comfort and understanding on the interpretive rule issue, but again I don't want to speak for them.
Nick Garaufis: I think that my comments at the meeting on the subject of emergency orders — which I won't specifically characterize — sent a message to the FAA counsel present that we should take a very hard look at alternative means of conducting enforcement before resorting to emergency orders. I'm very sensitive to the criticism that we've received on this subject both in the aviation community and on Capitol Hill. I think that in working through with our clients when we feel we need to do these emergency orders, there may be cases — and we won't even know about them because they may not get to that point — which in the past might have resulted in an emergency order, where now the enforcement attorneys in the regions might take additional steps, working with Flight Standards, to work through the enforcement issues with the certificate holder. It's my hope that we can voluntarily and very carefully minimize the use of emergency orders to the very narrow circumstances where safety is compromised in a very immediate sense. So that was my message to the FAA attorneys at the meeting, at the same time we promised to go back and look at how we handled these emergency orders in the past and then perhaps develop some protocols for the future in the agency.
AVweb: You're saying that sometimes the FAA uses its emergency revocation powers unnecessarily?
Nick Garaufis: No, what I'm saying is that if a way can be found to avoid using an emergency order, if certain steps can be taken to avoid using the emergency order, we — along with our client — have to think ahead to ways in which we can avoid using emergency orders. I don't reach the conclusion that's implicit in your question. All I'm saying is that wherever we can find a way to avoid using an emergency order, we should avoid using the emergency order. I want to look prospectively, I don't want to look retrospectively in that regard, because I think that at least on the part of the FAA attorneys and other FAA staff who I've dealt with over time, where they propose issuing an emergency order, they do believe that there is an immediate threat to safety. But the question is, further back down the road, could we have taken other steps that would have avoided the issuance of an emergency order? I'm not concluding that we could have taken other steps, I'm just asking everyone to go the extra mile and think ahead. It's the difference between thinking about only the next step and thinking two or three steps into the future. I think that request on my part was well received by the FAA attorneys in attendance, and I'm hopeful they will take action on that request.
AVweb: Let's move on to some other items. For example, the Streamlined Administrative Action Program.
James Whitlow: That's not us, that's really Flight Standards.
AVweb: Well, we just had a chance to read the new order on the program, and there seems to be two problems with that order from our perspective that do seem to be strictly legal issues. At the time the original "ticket program" was announced, we were fairly vocal about a few things that were wrong with it, and some of those things have been fixed — for example, the "frontier justice" nature of handing somebody a ticket on the ramp has gone away in the new order, and that's good. But two legal problems seem to remain unaddressed in this order. Perhaps the most serious is the Privacy Act issue. That is, an administrative action — which is essentially an allegation by an FAA inspector that has not been tested — goes in an airman's file for two years, which seems legitimate for purposes of progress enforcement policy, but it is available to anyone under the Freedom of Information Act (FOIA), which means that an airman's employer or an airman's insurance company has access to it. That's a real problem, in our view.
Clearly, the purpose of the streamlined program is to increase the use of administrative actions. That's how the whole thing started. The use of administrative actions for progressive enforcement purposes like a noble enterprise, and streamlining the procedure to make it possible to use it more easily seems like a reasonable thing. But we don't want people hurt unnecessarily. An administrative action represents a "he said" situation where the inspector says to an airman, "you did something bad and I'm going to write you up for it, but we're not going pursue legal enforcement action this time ... but if you do it again, we will." The airman doesn't have any meaningful opportunity to challenge such an administrative action. There's no real recourse. Since that's the case — since it's just an allegation — it seems to us that the FAA is entitled to keep that information in the airman's file for two years and to throw the book at that airman if he does it again, but to have that information available to anyone in the general public who asks for it seems like a real problem.
We understand that it's been that way for ten years, and that this is nothing new. But it was an old problem, and now it's a magnified problem because these things are going to be used a lot more often.
James Whitlow: That's why I reacted the way I did when I said "this is not us" because I think if you talk to the Flight Standards people, they have a different view about what they did. For example, when people talk about the "frontier justice" of the ticketing program, from their point of view and to some extent from our point of view, it wasn't frontier justice — it was an opportunity to solve things informally, which is what we understood people were pushing for even back with that GAO audit. So I think there was a lot of surprise at how the ticket was suddenly being viewed. Right or wrong, there was a lot of surprise.
What I believe we tried to do with the change to the ticketing program was to kind of put us back where we were before the idea arose of handing something out at the ramp. We were not making changes to the administrative process. As you said, those things were releasable under FOIA for ten years, there isn't any argument we can make now to start withholding it, and that wasn't the plan. The plan was to move away from the ticketing program, to move away from the objections that were raised, and to kind of maintain the streamlined non-enforcement program with the same type of administrative remedies that we had before.
I just don't feel comfortable answering some of the policy questions on the underlying issues, because I know how hard Flight Standards tried to work to be responsive to what they thought were the real concerns. It's not that I want to dodge the question...
AVweb: But Flight Standards can't really do anything about the privacy issue, can they?
James Whitlow: On the Privacy Act issue, we did not change our administrative action process. We are now where we were for the last ten years. We don't have a legal justification for suddenly starting to withhold things that we have been releasing for the last ten years. The change to the ticketing program was not designed to change our administrative action program. There isn't a hook here, or a basis to start withholding.
I just feel more comfortable with the answers to some of the questions you've asked coming from Flight Standards, because they tried so hard to be responsive, and if there are areas where you feel they haven't been responsive...
AVweb: We don't know how Flight Standards could answer a question like that...
James Whitlow: I thought there was really a lot of acceptance of the idea — I remember the GA coalition meeting where people clapped and applauded — that we were scrapping the new ticketing program and going back to where we were before, with some internal streamlining within Flight Standards. I mean, part of this program was to give the Flight Standards inspectors greater authority and to reduce the amount of coordination that had to do. I thought everybody was really happy with where Flight Standards wound up on this, but that it was also recognized that we weren't making changes to certain elements of the enforcement program such as the administrative process.
AVweb: Jim, a proposal for you on a way that Legal could possibly work with Flight Standards and protect airmen to some extent while at the same time fulfilling your responsibilities under the Freedom of Information Act and the Privacy Act. In the most recent documents about the joint handbook bulletin for the streamlined administrative action program, there's some new material that I liked. It is a definition that explains how administrative actions work and what they really constitute. Is there a way to make sure that any records that are disclosed to the public or to prospective employers — which is really the issue here — contain not just the letter of warning or letter of correction, but also this explanatory material that makes clear to the recipient of the records that this does not constitute the finding of a violation, it is not a legal enforcement action, and so forth.
James Whitlow: Tell you what, why don't we get together and have an offline conversation to explore some of this?
AVweb: Okay. Can we move on to the NPRM on protection of voluntarily-submitted information which was just published this week? It would appear that it's going to create perhaps even more concern on the part of airman that they will be vulnerable to enforcement actions when their employers turn over voluntarily-submitted information to the FAA, because the NPRM explains that although the designated information itself won't be used as evidence in an enforcement action, it can provide the "lead" that will lead to the enforcement investigation and the collection of evidence that will be used in the enforcement action or in a criminal action. We're concerned that this is going to create even more suspicion and more fear on the part of airmen that their employers will turn over more information to the FAA which will be designated, but then that information will be used to develop an enforcement case against the individual airman.
James Whitlow: That's interesting, because I know when that issue came up specifically related to the FOQA program, that there was comfort that we could draw that distinction between information that would be used directly in court, vesus those situations where the information might generate an investigation but wouldn't be relied upon. It's also something that was discussed in the ASAP program about the extent to which, if you got an ASAP report, it wasn't a covered event, but you still could independently investigate, whether or not you could actually use the ASAP report as a piece of evidence versus when you could initiate an investigation based on it.
I think the answer to me is that you need to see what the specific programs are we're talking about, in addition to the general rule that authorizes us to invoke that statutory authority. I think the way we had envisioned it was that we would have the general rule out, but then specific programs would be established the way we were trying to establish FOQA through either a separate rule that would talk about how the information would be used, or if we can, through a policy statement. I say "if we can" because although right now we do have a FOQA policy statement out, our understanding is that everybody still wants there to be a rule. It may turn out that we may have to do all these things through rulemaking.
But anyhow, my answer right now — what I would like to see the public be made aware of — is that you need to also look at what we're going to specifically do and how we're going to specifically implement the program. The feedback we've been getting so far on the FOQA program and the ASAP program is that this isn't really that big of a concern that's going to sabotage the receipt of voluntarily-supplied information.
Nick Garaufis: I think we issued the NPRM on July 26th, and there's time for public comment now. Obviously, your views and the views of others who make submissions to the docket are going to be taken into consideration before we finalize any rule. I would encourage anyone who has concerns or suggestions to formalize those in a submission to the docket. We will be reviewing all those submissions when the docket closes, and making changes to the rule that we feel are appropriate when we issue a final rule.
I understand your concern. You have to recognize that the statute that authorized us to establish such a rule was enacted because there was a concern that in voluntarily providing such information, it would then be reachable through Freedom of Information Act requests, and that in establishing these programs such as FOQA, we wanted to protect that information from general dissemination. With regard to criminal investigations, there are many ways for prosecutors to access information of this kind, so I don't think the real issue is whether this kind of information could be reached for purposes of conducting a criminal investigation. The real issue here is the comfort level of the industry in providing this information voluntarily, so that information that they deem to be sensitive is not shared generally in the community. That's what this legislation and the proposed rule seek to address.
AVweb: We did want you to comment, if you would, on where we stand with regard to the airman database. Last winter, the Administrator told us that she was pretty sure that this issue was going to get resolved and that the addresses were going to be made available again to industry, with the appropriate protections. The last thing we heard was that everyone was frozen waiting to see what Congress was going to do.
Nick Garaufis: We anticipate that the reauthorization legislation will resolve that problem, and we're hopeful that this will be taken care of in the near future by an act of Congress. It was and is our position that the Privacy Act prohibits the dissemination of the airman home addresses. This is not a policy position of the Chief Counsel. It is strictly an interpretation of the Privacy Act. I believe that the practice of providing airman home addresses has been extremely useful in the education of the aviation community, communication within the aviation community, and has in many ways provided a nexus for critical information and improved safety.
It's unfortunate that when we examined the law, we were obligated to reach the conclusion that we did. But we also feel that should the law change, we'll go back to the status quo before, and I'm sure that the community will be well-served by the dissemination of this information. I just want to make it very clear that we reached the conclusion as a matter of law, we didn't reach the conclusion as a matter of policy that we could not disseminate the airman home addresses.
AVweb: If the language on this issue does not wind up in the reauthorization bill, is the FAA prepared to act independently on this?
James Whitlow: We have two proposals that we've given — things such as notice to provide the opportunity for people to help build that list — and I think we'd still be willing to offer those. But the bottom-line issue is that if we don't get the additional statutory authority, we would not be able to back to where we were before. But I do want to make it clear that the reason why we did have a period of time where we were releasing the list is because we were trying so hard to come up with legitimate legal justification, but that when the Supreme Court issued the decisions that it issued about the fact that home addresses do not provide any information about the agency's performance of their duties and therefore cannot be released under the Freedom of Information Act, we no longer could stretch our interpretation. We had actually sent over routine use — some of the proposals that are being made now — we had proposed those — we had tried that route. But once the law got to the point where it got, we could not with a straight face make a legal argument that would justify releasing those names. But I do want to make clear that we did try — we did try. As I said, the proposals on routine use were things we'd already pursued. There just came a point when, with the current state of the law, we could no longer do that and act consistent with the Privacy Act.
Nick Garaufis: Our review of the law came up in the context of some complaints we'd received from airmen that the information was not releasable. We looked at it, and we looked at the case law, and we looked at the statute of the Privacy Act, and we concluded that indeed those complaints were well-founded under the law.
Eliot Brenner: That's all the time we have. Thank you.
AVweb: Thank you!
Interview With John and Kathleen Yodice
This is an edited transcript of telephone interview held September 8, 1999, with John and Kathleen Yodice of Yodice Associates, both of whom attended the May 25-26 outreach session in San Diego as representatives of the Aircraft Owners and Pilots Association. John Yodice has served as AOPA's General Counsel for many years, while Kathleen Yodice worked as an attorney in the FAA's Office of the Chief Counsel before joining her father's law firm in 1998. The interview was conducted by AVweb editor Mike Busch.
AVweb: We recently had an hour-long interview with FAA Chief Counsel Nick Garaufis and Deputy Chief Counsel James Whitlow.
John Yodice: I have read the transcript you sent me, and I believe Kathy has as well.
AVweb: We thought it would be interesting to get the perspective of an industry participant in the FAA's May 25-26 outreach meeting, and naturally we thought of you.
John Yodice: Well, thanks! I appreciate that, and we're happy to cooperate with you in any way we can. I can give you an overall impression, and then if you'd like to get into any of the specifics, we can do so. I'm sure Kathy has an overall impression that may even be a little different from mine.
AVweb: That's exactly what we're looking for.
John Yodice: Let me start out by saying that I thought the idea of the outreach session was a very good one. It's really part of the Administrator's effort to keep a line of communication with the industry, in hopes of solving problems before they get very big. In general, Mrs. Garvey seems to have an emphasis on communication, and I think she was imbuing the Chief Counsel's Office with that same philosophy. At least that's the impression I got of how the meeting came about.
From that perspective, it was very good. There was a lot of opportunity for interaction with the FAA attorneys, and they seemed to be listening. I'd say some of the attendees were more into the spirit of it than others. Some were kind of defensive and a little antagonistic, but most were very cooperative and willing to listen.
The most noteworthy thing to me, however, was that this meeting took place in May and nothing has come out of it since then ... despite promises that there would be some sort of communication with the attendees, that some projects would be set up, etc. But except for a chance encounter that [EAA's] Jack Harrington and I happened to have with the Chief Counsel where we talked a little bit about it, as far as I know there's nothing formal that's come out of the meeting. And it's been over three months now.
AVweb: Now, you read in the transcript that apparently it's the intent of the Chief Counsel to have these outreach sessions twice a year, and that the next one would probably be in January?
John Yodice: Yes, I learned that for the first time from your interview transcript.
AVweb: I got the impression during our interview that the Chief Counsel felt that this January date represented something of "a gun to his head" because he knew he'd be called to report at the January meeting on what progress the FAA had made on the various IOUs they took back from the May outreach session. So perhaps there'll be some tangible progress visible in January.
John Yodice: Well, we'll see. Kathy, what were your impressions?
Kathleen Yodice: I echo John's surprise at the Chief Counsel's comments about having regular semi-annual meetings, because I don't recall that being decided or even discussed in San Diego. Actually, the only thing I recall talking about — and it might have been in one of the side conversations — was that maybe these things need to be held more often, but maybe not annually ... maybe every two years. At least that's my impression of what was talked about. Because the wheels seem to turn so slowly at the FAA that there's not an awful lot that can be done in a year, much less six months. So that was kind of surprising when I read your interview.
But I agree that I felt the session was very well received, very well attended, and very well conducted. I think that's even evidenced by some of the "surprise" comments that Nick Garaufis and James Whitlow made to you during your interview: that they we "surprised" to hear this, and they were "surprised" to hear that. I think that in and of itself evidences the success of the session — that this is what the people inside the Chief Counsel's Office need to hear so that they can function in a more efficient and responsive manner. If they don't hear these things, how can they know that they happen and be able to respond to make the system work?
The negative side of that was that some of the information I got following the meeting — in personal and professional discussions with regional FAA attorneys who had not attended the meeting — was that the word that had gotten back to some of them was that it had been an "FAA bashing" session. I was disturbed to hear that, because my impression was that nobody was bashing the FAA in general or the FAA attorneys in particular. It was constructive criticism, which is exactly what the Chief Counsel asked that we do. Certainly we did complain about some things, but we weren't complaining to be mean. We were talking about problems that we identified as problems, and that maybe we could work through together. So I was a little disappointed that maybe the word was getting back to the field that people were not being constructive in their criticism, when my impression was that that's exactly what it was — a constructive criticism session recognizing both good and bad.
The last thing I'd like to echo again is that there has been nothing in the way of visible progress since May, and part of that might be because of what Nick and James told you: that they're still working on projects. But one of the things we were promised (my word) is that the FAA would circulate a list of the names, addresses and telephone numbers of the attendees, so that we all could have them. There were a lot of people there from industry that met each other for the first time. But even that has not been circulated, which is kind of a disappointment.
AVweb: During our interview, we asked the Chief Counsel whether anything had been written down to memorialize the meeting from the FAA side, or whether anything would be written down. It was pretty clear that they hadn't and they wouldn't. It seems to us that important meetings like this should have some sort of "proceedings" recorded and distributed to the participants afterwards, and that there should be some record of what transpired. But that was clearly not their intent.
You mentioned earlier that you felt that the May outreach session was instigated by the Administrator as part of her initiative to improve agency/industry communications. Was it your impression that the Chief Counsel was making this outreach effort enthusiastically, or did you feel that he was doing it "under orders" and reluctantly?
Kathleen Yodice: I think that's a fair question, and one that I was going to answer in a different way. I think the answer was that the Chief Counsel went to San Diego enthusiastically. Before you asked the question, I was going to share with you my notes of Nick Garaufis' opening remarks, which are pretty consistent with what he told you: that the Chief Counsel's Office is interested in looking at things differently, recognizing that they have a statutory objective, but wanting to meet that objective efficiently and working with industry as a partner. He pointed out that the agenda for the meeting was the industry's agenda — these were items that industry wanted to bring to the Chief Counsel's attention. I do think he was enthusiastic, above board, and straightforward in wanting to have this work efficiently and productively.
AVweb: How was the agenda set? When you were originally invited to this meeting, did the FAA ask you to submit discussion topics in advance?
Kathleen Yodice: Yes, we received an initial invitation letter, and in the letter they asked us to suggest agenda items.
AVweb: I gather that various industry participants made formal presentations to the group, including both of you. How was that arranged?
Kathleen Yodice: I think that the Chief Counsel's Office took all of the suggested agenda items, distilled them down to the ones that seemed "worthy" of putting on the agenda, and then assigned people to those subjects and called the people to ask if they would be prepared to discuss that particular item.
AVweb: All the regional chief counsels were in attendance?
Kathleen Yodice: Every regional counsel was there — from the nine FAA regions as well as the two regional counsels from the Technical Center and the Aeronautical Center.
AVweb: Did the FAA regional counsels say much, or did they basically listen?
Kathleen Yodice: I think the regional counsels took more of a listening role.
John Yodice: Not as active a participation as you would have expected, although there were some presentations by FAA attorneys.
Kathleen Yodice: In fact, I was on a panel with [Chief Counsel for the Central Region] John Curry. So perhaps I misspoke: There was some affirmative involvement by some of the regional counsels. But for the most part, it was industry talking and the FAA listening.
AVweb: One of the topics that came up in our interview with the Chief Counsel was that of achieving more consistency in enforcement policy across the various FAA regions. Did you get any impression of the prospects for progress on that front?
John Yodice: Well, it came up not as a major item, but in connection with some of the individual agenda items — for example, the emergency revocation discussion, and especially the GAO report which said that there was little consistency between regions on what cases are subject to emergency orders and which are not. It also came up in connection with the issue of the FAA's "automatic" charging of careless or reckless operation in connection with most operational violations. The FAA said they would make an effort to make these things more consistent. It came up in connection with certain agenda items, but it was not a major agenda item itself.
Kathleen Yodice: Careless and reckless was an area where I did think we got a difference of opinion from some of the regions. Some regions were saying yes, we typically put it in, while other regions were maintaining that they looked at each case and determined whether to charge careless or reckless on a case-by-case basis. So this was a case where consistency came up in the context of a bigger issue.
AVweb: In our interview with the Chief Counsel, it appeared that if any of the agenda items were going to see some tangible progress by the January meeting, it would probably be on the issue of emergency orders. Do you agree?
John Yodice: I agree, although I think that this was one that they were very defensive about. This is one where there was a lot of antagonism.
AVweb: Really? In our interview, Garaufis made some strong statements about his intention to come up with internal policies that would reduce the use of emergency orders to an absolute minimum.
John Yodice: I think if you were to have a spectrum of the attitudes evidenced by the FAA, certainly Garaufis was the most enthusiastic about the whole program. Then it kind of ranged down. I would certainly say that the Deputy Chief Counsel was not as enthusiastic as the Chief Counsel. There were some regional counsels that were very enthusiastic, and some that were not.
Kathleen Yodice: You have to understand the history. This is something that has been wrestled with for years, going back to Greg Walden as the Chief Counsel. How can a policy on emergency revocations be identified that is logical and understood? That's probably what we felt at this meeting: that it's difficult to say that someone should be revoked because they lack qualifications, and then establish a policy as to when it should be emergency and when it shouldn't be emergency. I had the sense that some FAA people thought that a line could be drawn, while other FAA people thought that there's no way to draw the line and that all revocations should be treated as emergency revocations.
AVweb: Aren't there two distinct, separable issues here? One, the difficult question of whether some of the orders that are now being handled on an emergency basis don't have to be; and two, the much easier issue of providing some advance notification and a response period wherein a certificate holder can present arguments why his certificate should not be revoked.
John Yodice: If there was an aspect that got some sympathy from the FAA, the latter was one. It's not the major point, but certainly they were hard pressed to defend that it takes many months to work up a case, and then all of a sudden it comes out as an emergency revocation without any prior notice to the respondent. I think the FAA is looking at the question of how to give them a little bit of advance notice, so as to make the playing field a little more even. But that's certainly not the major problem. The major problem is that we need someone who can adjudicate these matters, and justify whether it is an emergency or not, so that a person is not grounded on whim and caprice, which has been happening in some cases. Of course, emergency revocation has been proper in some cases.
AVweb: Isn't prior notification an essential first step to any solution, since without notification, there's no way to appeal the revocation before it's too late?
John Yodice: In my view, that's the lesser of the two problems, but it is a problem.
Kathleen Yodice: There were regional attorneys who felt no obligation to notify someone of what they were intending to do. That brings us back to the internal differences of opinion within the FAA on how to handle this particular policy.
John Yodice: The proof of the pudding will be in the eating. We have three months under out belt with nothing, except perhaps an indication that there will be another meeting. You know, that's a Washington tactic: have meeting after meeting, and that justifies doing nothing.
AVweb: But won't having these meetings on a regular basis, especially on a semiannual basis, put some pressure on these folks to make some forward progress, because they know that they're going to have to face this group every six months and report on what's been accomplished. It's surprising that the FAA didn't notify the industry people who attended the San Diego session of its intent to have these meetings on a regular basis.
John Yodice: Well, what probably happened is that we spent two days with the Chief Counsel, and then the FAA lawyers met by themselves on the third day. This is probably a product of what happened on the third day, to which we were not privy.
AVweb: Again, it's really too bad that the FAA didn't have someone writing this stuff down and then distributing it to the participants afterward. But apparently, for whatever reason, they don't want to do that.
Kathleen Yodice: I read in your interview when they said that they were also worried about the "chill aspect," and I have to say that might have some merit to making these sessions as open and candid as they are. Maybe it should be left up to all of the participants who attend these things — FAA and industry alike — to decide. I don't know. I can see both sides of that argument.
AVweb: What can you tell us about the discussions that took place concerning informal conferences?
Kathleen Yodice: In fact, this was the agenda item that I was asked to speak on. Of course, I spoke on it from the general aviation perspective — specifically, the perspective of the general aviation pilot who may be involved in an enforcement action, and the importance of the informal conference to such individuals. Of course, it is statutorily required, but it is also an opportunity for the airman to face his accuser, if you will. Sometimes, just that ability does a lot in making the case settle more easily. So we talked about how everybody needs to be reminded of the basis for the informal conference, which is that it is the statutory opportunity for the airman to be heard when the FAA may not have all of the information.
But there was also a lot of discussion about what the airman brings to the informal conference and how he expects the informal conference to go, versus what the FAA believes the informal conference is meant to accomplish. The FAA, pretty much as a whole, believed that it was a listening session — that they would come to the informal conference and hear what the airman has to say. The airman, for the most part, was going to the informal conference not just to say whatever he or she needed to say, but also to hear the FAA's position and to learn why the FAA was taking a particular position. That's where the two sides didn't seem to meet as to what exactly the informal conference should entail and how the dialog should be conducted. So there was quite a bit of discussion as far as that was concerned.
I don't mean to suggest that there was unanimity of opinion among the industry participants, either, because industry appeared to be split also as to what needs to be brought to the informal conference, and what needs to come out of an informal conference. For example, there were some industry participants that said they go all out at the informal conference and present everything in the nature of getting the entire case resolved at that point, while there were others who said that they go to the informal conference in the hopes that the matter might be settled, but not to present their entire case.
Another item that came up was the use of telephonic informal conferences. There was an overwhelming majority of industry —and I think even within the FAA — a dislike of telephonic informal conferences and a preference for face-to-face informal conferences. Industry encouraged the FAA to go back to affording more opportunity to have face-to-face informal conferences.
AVweb: Isn't that always an opportunity afforded to an airman and his attorney who are willing to travel to regional headquarters for the conference?
Kathleen Yodice: Yes, that's always an opportunity if there's a regional office available at which the individual can meet face-to-face. But we'd like to see such conferences offered at more locations. For example, we did mention that there was a great opportunity for Florida airmen when the Orlando field office was opened, and that this would be a much more financially reasonable location for a face-to-face conference than requiring the airman to travel to Atlanta. Likewise, the FAA now does have a field office in Cincinnati at which face-to-face conferences could be scheduled.
Another item that was discussed was the preparation of FAA attorneys at the informal conferences. Specifically, that there seem to be instances where the airman or air carrier attended an informal conference and the FAA attorney or FAA inspector were ill prepared, so that the conference didn't seem as productive as it could have been with a more prepared audience. Sometimes the FAA inspector or the FAA attorney would come to the informal conference saying, "we don't have any authority to resolve this case with you, but we're here to listen to you and we'll pass it on to the people who do have that authority."
One more thing that was discussed in the context of informal conferences was the FAA's practice of obtaining statements or information during the informal conference, and then using that information at a later time to prove their case. Some felt that there was a need for the FAA to reaffirm its policy not to use the informal conference as an evidence-gathering session. There were some fears by industry attorneys that there was a use of some of the information made available at the informal conference as the FAA's proof.
Overall, however, there were positive statements made about the informal conference policy — that it is a very important part of the process, and that it is something should be maintained and respected — and that for the most part, people who participate in informal conferences find them to be productive. This is an example of a situation where, for the most part, the system works — but there are some constructive criticisms to be made. The FAA may have felt that we were bashing them, but the criticisms we were making were of the exceptions rather than the rule.
AVweb: Did the FAA take back any specific IOUs in this area?
Kathleen Yodice: Possibly revisiting the issue of affording more opportunity for a face-to-face informal conference. I think they were going to go back and look at whether maybe they could travel to more Flight Standards offices so that there would be greater opportunity for an in-person conference. But judging from your interview with James Whitlow, I get the impression that the answer was going to be "no."
AVweb: What about the matter of the FAA attorneys and inspectors being better prepared for the informal conferences? Isn't this an important issue?
Kathleen Yodice: I think some of this was the responsibility of the regional counsels to get back to their offices and pass on the comments to their people, and maybe have the practices in their offices change as a result. So even thought there might not have been a specific IOU, I'm confident that these comments made it back to the field so that maybe in those circumstances where those problems existed, they're being remedied.
John Yodice: You know, the whole purpose of the outreach meeting was to establish an open line of communication with the FAA, allowing for input by the industry. And yet a number of specific examples were raised where the FAA was going forward on its own, without ever soliciting comments. The "ticket program" was one, and it was only the brouhaha that we all raised — that AVweb helped raise — that allowed for the input. We have the same situation with the "interpretive rule" on pilot readbacks to ATC, which came out without any notice, without any opportunity for comment. Then there was sudden decision by the FAA to withhold the airman database from industry. And how about the Cessna 300/400 exhaust system AD, in which they were prepared to go that way again, until we raised a stink and then they opened the docket for comments?
On the other hand, now that they seem to be opening the lines of communication, maybe this sort of thing will happen less and less. Hopefully.
Kathleen Yodice: Certainly, the FAA is no stranger to this sort of thing. There's a long history of the FAA doing something, having industry raise an uproar about it, and then withdraw it. It doesn't seem as if they're learning.
AVweb: There does seem to be a dichotomy here. Administrator Garvey talks continually about improved communication and partnership with industry, and not having these kinds of surprises. But clearly, the word has not permeated through the lower levels of the agency yet.
John Yodice: Right.
AVweb: And part of our job is to keep making these situations visible so that something gets done about them.
John Yodice: Well, together, we're being remarkably successful, because we've succeeded in getting the FAA to back up on a lot of these things.
AVweb: Part of the reason is that, at least from my perspective, Administrator Garvey has been astonishingly accessible on matters like this.
John Yodice: We weren't able to do anything about the interpretive rule...
AVweb: ...which is amazing, because the FAA's position on readbacks seems to defy logic completely.
John Yodice: Yes, they're wrong on that. We discussed that at the conference in May in the most blatant terms. The FAA was able to get a law that says that when they interpret a regulation, that's the final word on the subject, and the National Transportation Safety Board is forced to accept that interpretation. If you follow that argument to its logical conclusion — any time the NTSB makes a series of rulings that the FAA doesn't like, it issues an interpretive rule — and pretty soon we have a pretty hollow right of appeal. It's a dangerous thing. And that point was made at the meeting. But I don't see any action being taken.
Kathleen Yodice: With the interpretive rule, any time you talk to somebody at the FAA, they just give you the story line that "we're not doing anything new" and then they shut down the discussion.
AVweb: This is clearly a two-level issue. There's the FAA's interpretive rule on pilot readbacks that seems silly on its face. Then there's the larger issue of the statute that gives "teeth" to such interpretive rules. It used to be that the NTSB could trump the FAA, but under the new law, now the FAA can trump the NTSB. So now who's watching the watchers?
John Yodice: That's a good way to put it. And can you think of a better issue that could have benefited from a full discussion on both sides before any determinations were made? Both pilots and controllers talking about it, instead of the FAA lawyers unilaterally coming out with that interpretive rule without any prior dialogue?
AVweb: Did anything else of significance come up at the San Diego meeting that we should know about?
John Yodice: When we discussed the policy of reporting motor vehicle infractions at the meeting, the FAA attorneys were in total disbelief that there could be any pilot in the fleet that doesn't know that rule. They were just shocked — notwithstanding the fact that we gave them example after example of pilots who put down DUI convictions on their medical applications, making it obvious that there was no intent to mislead the FAA — even one case where a pilot put it down on his medical application within the 60-day period — and the FAA has this notion that every pilot understands that the medical part of the FAA is different from the security part of the FAA, and the requirement to report one place doesn't satisfy the requirement to report to another place. They were just in total disbelief.
Kathleen Yodice: It was pretty amazing to see their faces, and to say "there's just no way that all pilots don't know this."
AVweb: It certainly sounds like if the FAA follows through and does have meetings like this twice a year, it can't help but be a positive step.
John Yodice: We agree.
Kathleen Yodice: Absolutely. I think it would be great.
AVweb: Thanks so much, John and Kathy, for taking the time to share your perspectives with us.