The FAA’s Compliance Philosophy has been in effect for nearly two years now, which is long enough to have ample data from the first year of implementation to analyze. This article will reflect on that data in the context of the experiences members have shared with the Legal Services Plan.
To recap, the Compliance Philosophy was a sea change for the FAA in terms of how it addresses pilot deviations or other noncompliance with the Federal Aviation Regulations (FARs). This includes matters such as an airspace incursion, an airman failing to keep his pilot certificate with him while flying, or anything in between.
In Order 8000.373 setting forth the Compliance Philosophy, the FAA recognized that some pilot deviations occur due to “flawed procedures, simple mistakes, lack of understanding, or diminished skills.” In order to return airmen to full compliance, the FAA will now use whatever it views as the most effective means. Most of us are familiar with the expression “when the only tool you have is a hammer, every problem looks like a nail.” The Compliance Philosophy put more tools in the hands of the FAA Aviation Safety Inspector (ASI).
Remedial Training and Administrative Actions (a Warning Notice or Letter of Correction) have been around for a long time, so it’s not as if enforcement was the only option available previously. However, the Compliance Philosophy expanded the concept of using training, education, or other “appropriate improvements to procedures” and made this type of approach the default for any inadvertent pilot deviation. The Compliance Philosophy is not optional. Inspectors are directed to use it except in cases where it does not apply (for example, in cases of intentional or reckless deviations, or lack of qualifications).
The attorneys at the Legal Services Plan have the overall impression that the Compliance Philosophy is working as intended and has been a benefit to airmen. Many cases that might have previously resulted in an Enforcement Action (certificate action or civil penalty) are being resolved through a Compliance Action consisting of education, training, or counseling. Additionally, once a Compliance Action is successfully resolved, it does not go on the airman’s accident/incident/enforcement database record.
One possible consequence of the implementation of the Compliance Philosophy is that the chances of interacting with an ASI appear to have increased. 2016 was the first full year of the Compliance Philosophy, and adding up the numbers on the chart below, ASIs handled slightly more than 1,000 additional issues with pilots and operators in 2016 compared to 2015.
*process did not exist in 2015
Source: Federal Aviation Administration
The data show that Legal Enforcement Actions have dropped by more than 50%, and Administrative Actions have dropped by 70%. This implies that many airmen have been deemed to be returned to full compliance through a Compliance Action, who in the past would have been subject to certificate action or imposition of a civil penalty.
As with any large organization, change at the FAA can result in some inconsistencies. One example we have seen is that ASIs are not always consistent in complying with the guidance in FAA Order 8900.1. For example, at times they are not clear at the outset about the nature of the investigation. Sometimes an airman receives a Compliance Philosophy brochure in the mail as the first contact, sometimes it’s a traditional Letter of Investigation, and other times it’s a phone call that may or may not mention the Compliance Philosophy.
Additionally, ambiguities in the Remedial Training offer letter template contained in FAA Order 8900.1 have caused some confusion for pilots. AOPA has reached out to Flight Standards regarding this issue. On the whole, the FAA seems to be making a good-faith effort to implement the Compliance Philosophy uniformly and has directed resources to change management. They have not yet succeeded completely, but the progress so far has been substantial.
Positive changes under the Compliance Philosophy notwithstanding, it’s always good advice to consult with an aviation attorney before engaging with the FAA. Keep in mind that obtaining legal counsel after a possible pilot deviation does not preclude a Compliance Action. Additionally, the Pilot’s Bill of Rights still applies which means airmen involved in a Compliance Action are entitled to ATC data in order to more productively participate in the investigation.