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FAA to seek compliance action before enforcement action

The FAA recently made changes to its compliance philosophy that may have a positive impact on how the agency interacts with airmen, certificated entities, and noncertificated persons when there is the potential for a violation. FAA Order 8000.373 became effective June 26 and sets forth the FAA’s new compliance philosophy, effectively stating that when it is possible to correct a deviation or noncompliance issue without an enforcement action, the FAA should seek appropriate educational, counseling, and corrective measures before an enforcement action is pursued. On Oct. 1, FAA Order 8900.1 CHG 422 was issued, which seeks to align the FAA flight standard’s compliance philosophy with the FAA’s broader compliance philosophy. These changes to the FAA’s compliance philosophy appear positive as they are shift away from what has historically been an enforcement-first disposition. FAA enforcement actions are never pleasant to airmen and companies because they may result in civil penalties, certificate suspension, and/or certificate revocation.    

Going forward, the FAA is to make additional initial considerations before taking enforcement action against an airman or company. The FAA is to consider what the root cause of the noncompliance or deviation is and consider the option of a compliance action first when appropriate. A compliance action is a new term and concept. A compliance action is a nonenforcement method to correct unintentional deviations that are the result of simple mistakes, flawed processes, a lack of understanding, and even diminished skills. A compliance action taken or offered by the FAA may be educational, an on-the-spot communication between the FAA and an airman or company, additional training, remedial training, counseling, and/or suggested improvements in organizational processes. The FAA will still pursue enforcement actions when there are intentional or reckless deviations from regulatory standards or that otherwise present an unacceptable risk to safety. However, the concept of exploring alternative options under the term compliance action before an enforcement action is considered is a welcome policy change.

When it comes to policy change, execution and implication of the new policy will depend on how individuals within an organization adopt it. This is true of all organizations including the FAA. It is valuable for us as airmen and companies to be aware of the current compliance philosophy of the FAA and the introduction of the term and concept of compliance action so that we know what we should expect and if our experiences when interacting with the FAA differ from this expectation. In light of the recent change in the FAA’s compliance philosophy, airmen and companies should expect or even request the FAA to analyze and assess a potential compliance problem from its root cause and then propose a compliance action. This is especially relevant when the deviation or noncompliance is unintentional or when there has not been an unacceptable risk to safety.

A compliance action offers the potential opportunity to resolve a deviation without an enforcement action. However, airmen and companies should be cautious when there is compliance action offered by the FAA because there remains the potential for a subsequent enforcement action. It is advisable for airmen and companies to consult with competent counsel when a compliance action arises to review it thoroughly and seek the best possible outcome.

Forest Owens

Mr. Owens counsels and represents Pilot Protection Services members on such issues as FAA compliance and enforcement. He enjoys flying a Cessna 172.

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