Articles, Legal

FAA’s Compliance Program: Kinder and Gentler?

Posted on Aug 17, 2020 by Scott Williams, Esq.

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Until 2015, the United States Federal Aviation Administration (FAA) had developed a deserving reputation as the “Darth Vader” of aviation safety. If a pilot or aircraft owner did anything wrong, the FAA would usually commence a certificate enforcement action. While some violations were referred to counseling or remedial training, most ended up at the FAA Enforcement Counsel’s offices. Once those offices received the case, 30-day suspensions were issued left and right. For some violations, suspensions were much longer.

Not only were pilots scared to commit a violation, but most were afraid to even speak about an incident out of fear that it would turn into a violation. This included pilots being reluctant to declare “minimum fuel” when they should have, or heaven forbid use the word “emergency.”

The Early “Compliance Philosophy”

On June 26, 2015, the FAA rolled out their innovative “Compliance Philosophy.”1 Its goal for this philosophy was to identify safety issues that underlie deviations from standards and correct them as effectively, quickly and efficiently as possible. To do this, the Compliance Philosophy embraced self-disclosure of errors. It also involved collaborating with the aviation community to share information about safety issues that underlie deviations from standards. Errors were to be identified, reported and analyzed in a non-judgmental manner so that appropriate remedial or systemwide corrective action could be taken based on the specific facts and circumstances of each case.

To quote the FAA: “A ‘just culture’ allows for due consideration of honest mistakes. But even unintentional errors can have a serious impact on safety, so it’s critical that the underlying safety concern is always addressed. The key is where to draw the line between blameless unsafe acts that can be addressed by using compliance tools, and unacceptable behavior that requires enforcement action.”2

What actually changed? First, all of the most common violations began to be resolved with either counseling or remedial training instead of being kicked up to enforcement counsel. So long as the aviation safety inspector did not believe a pilot was deliberate in his or her actions, cases were closed out at the FSDO level. Examples of such routine matters no longer warranting enforcement were airspace violations (including TFR busts), failure to follow ATC instructions and allowing a BFR (biennial flight review) or IPC (instrument proficiency check) to expire for a short time.

What did not change? The FAA was still unloading both barrels at falsification of any pilot or medical application. For those airmen who had a DUI but failed to report it on their next medical application, the FAA was still referring to their sanctions guidance table,3 which recommended revocation as the appropriate sanction.

“Compliance Program”

On Oct. 31, 2018, the FAA renamed its Compliance Philosophy as the current “Compliance Program.”4 What it was essentially declaring was: “Hey, our philosophy is going well, let’s change the name and make it more official.” There were no changes in philosophy (pardon the pun), but merely a more official name.

Real World Numbers

From the pre-2015 days, where over half of all violations went to enforcement, during a nine-month period ending June 30, 2019 there were 5,003 investigations opened, usually by local FSDO Aviation Safety Inspectors. Of those 5,003 cases:

  • 4,302 (86.0%) were dispensed with via the Compliance Program. This includes informal counseling, remedial training or “no action”
  • 285 (5.7%) were handled “administratively,” which includes 709 rides and/or oral exams, and warning letters (which expire after two years)
  • 416 (8.3%) went to enforcement action

Should pilots still file a NASA Report?

Absolutely. Unless a pilot is certain that their actions caused an accident (as defined on NTSB Form 6120.1) or constituted a criminal act, it never hurts to file an Aviation System Safety Report, also known as the NASA Report. Pilots still have only 10 days from the date they knew, or should have known, about the potential violation to file the report. If their case is serious enough to warrant enforcement, the report will halt any penalty on most violations.

What matters still go to enforcement?

Falsification, lack of pilot qualifications (i.e., a non-instrument rated pilot operating IFR while PIC), or deliberate actions (intentionally entering IMC while VFR). Unfortunately for the pilot, these are also the very same violations for which a NASA Report will be of no help.

Do I need a lawyer?

The most common question asked of the author is: “ATC just told me to call this number, do I need a lawyer?” For a simple call to ATC, the answer would be “no.” Just be smart about what to say or not to say. It’s safe to provide your name, certificate number, phone number and confirm you were PIC during a flight. Don’t volunteer anything more with ATC, who usually won’t ask you for more anyway.

Once the matter goes to a FSDO and the pilot receives a Letter of Investigation, it never hurts to get some coaching before and during the initial interview. Even though most matters are resolved without enforcement under the Compliance Program, you don’t know for sure if yours will or will not. Also, coaching helps focus the pilot on telling the FAA what they need to hear, in the tone they want to hear it.


This article was initially published in the May 2020 issue of COPA Pilot

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