Changes Revealed in FAA Enforcement Procedures
During the annual EAA Legal Advisory Council Board Meeting on July 24, 2015, our special guest Reggie Govan, the recently installed FAA Chief Counsel laid out several changes underway at the FAA that will affect how the FAA conducts enforcement actions against pilots and maintenance technicians.
During the annual EAA Legal Advisory Council Board Meeting on July 24, 2015, our special guest Reggie Govan, the recently installed FAA Chief Counsel laid out several changes underway at the FAA. First, enforcement (administrative and/or legal action brought against certificate holders for alleged regulatory violations) will no longer be conducted through the nine FAA Regional Counsel offices. Instead, Cindy Dominik, Deputy Assistant Chief Counsel of Enforcement, (who will report to Peter Lynch, Assistant Chief Counsel), will supervise five enforcement regions, each staffed by an experienced senior managing attorney and a staff of attorneys dedicated 100 percent to enforcement. If nothing else, this new structure promises attorneys who are enforcement specialist and will resolve the longstanding complaints of inconsistent interpretation of Agency policy and enforcement sanctions among the regions. James Tegtmeier, will manage enforcement in the Midwest.
Reggie Govan's announcement about the change in enforcement philosophy has significant potential. He explained to us that the FAA wants to find ways to help well-intentioned certificate holders learn from unintentional mistakes, get retraining or education, and limit the use of significant monetary sanctions to a narrower range of non-compliance. Under this new approach, enforcement proceedings will be reserved for the more serious safety risks, falsification, failure to fulfill commitments to take corrective action, intentional violations, flawed procedures and, where applicable, inappropriate commitment of resources in support of effective risk based decision -making and safety management systems. He also made the point that its best to resolve alleged noncompliance early in the process and well before the matter gets to the Chief Counsel's Office because when he takes a case he intends to win.
Jeff Klang, Great Lakes Regional Counsel, and James Tegtmeier expanded on what Reggie Govan laid out for us. Apparently, the FAA attorneys expect the majority of alleged violations to be resolved at the FSDO level, without involvement from FAA counsel. The difficulty this presents is that for years we've been advising certificate holder to avoid providing any information to the FSDO investigators, and one of the hallmarks of the Pilot's Bill of Rights was the provision of Miranda like warning to alleged violators that they need not respond to the FAA and anything they say can and will be used against them. Cases won't be resolved at the FSDO level if certificate holders refuse to share information with the FSDO investigators. On the other hand, the first certificate holders that share information with the expectation that the FAA will employ a soft approach may be taking a big risk.
Eventually, we'll have the benefit of data and case examples to verify (or negate) the FAA's revised approach to enforcement. Until then, aviation attorneys will continue to be skeptical of the philosophical shift at the FAA. The Legal Advisory Council wasn't shy about sharing its mistrust for FAA attorneys, and I had to put the brakes on the aggressive cross examination that ensued as those pink wings were displayed to us.
For now, I'm one of the few aviation attorneys that actually believes what we've been told and I'm optimistic about the changes afoot. Here's why: First, I spent several hours with Reggie Govan and I got to know him on a personal level. He is a true outsider. He was recruited out of retirement and he has no intention of making a home for himself in government. He doesn't expect to survive too far into the next administration. He's here to get a job done and get out. Maintaining the status quo doesn't interest him. Appeasing the establishment isn't on his agenda. He recognizes the drawbacks and weaknesses of past approaches and he's here to right the ship. Second, Reggie's description of coming changes is consistent with remarks heard from other FAA officials during the past week. Administrator Michael Huerta's announcement of a shift in philosophy during his Meet the Administrator session was met with similar skepticism. In response to a question about the use of "illegal" navigational equipment on board standard category aircraft (Ipad mounts), the Administrator announced that he preferred to think of these situations as presently not authorized, rather than illegal. More to the point, he announced that he views the role of his office as helping to find solutions to regulatory challenges rather than sanction safety minded certificate holders or hold firm to strict interpretation of regulatory requirements. I also spent a few moments with John Duncan, Director of Flight Standards at the FAA. John is a true GA pilot who in years past has flown his own home built Titan Tornado to Oshkosh. John forecasted big changes that would soon be announced, including a likely re-write of the enforcement sanction manual (Order 2150.3B). Finally, there has been a huge turnover in FAA attorneys over the past few years. The new attorneys owe no allegiance to past practice and FAA has the opportunity to provide fresh training to the new cadre of staff attorneys.
Just as I was putting the finishing touches on this article, I was alerted to a new FAA Order signed by Michael Huerta on June 26, 2015, Order 8000.373 titled, "Federal Aviation Administration Compliance Philosophy."
The Order essentially mirrors what I've described above - that FAA will endeavor to achieve regulatory compliance by working with compliance minded certificate holders. It recognizes that many violations stem from flawed procedures, simple mistakes, lack of understanding and diminished skills that can be best remedied by training and/or education. Thus, intentional or reckless violations will be dealt with through strong enforcement mechanisms but when appropriate, the FAA will attempt to utilize less punitive measures.
I've never been shy to criticize the FAA. In fact I've litigated against their misguided policies (see EAA v. FAA), and I've been deeply involved in drafting the Pilots Bill of Rights and the recent amendments known as PBOR II. Yet, as Reggie said, when the music changes, it's time to learn a new dance. I won't take to the floor just yet, but I see the band tuning some new instruments and I'm going to stay close to see what they play. Yes, so far, it's just words - but that's where it starts. I don't know if this pig will fly, but it sure has some pretty wings.
Alan L. Farkas is Co-Chair of SmithAmundsen Aerospace based in Chicago, and Chairman of the EAA Legal Advisory Council.
