A Kinder, Gentler FAA? Continued from page 19 from regulations or standards discovered dur- ing inspections or surveillance. ■■ Definitions – Compliance Actions • Additional Training - Individualized programs through an organization’s approved train- ing program, another required training pro- gram for job function or work environment (such as carrier employees receiving SIDA or ramp driver training from the airport), and/ or the FAASTeam Remedial Training process. • Remedial Training - A program authorized and described in Notice N8900.RT that AFS inspec- tors use for certificated airmen when remedial training is the appropriate action to take for a deviation from statutory or regulatory standards. • Counseling - Oral or written counseling of airmen, organizations or non-certificated National Airspace System (NAS) participants for a safety concern or a deviation from statutory or regulatory standards. • Actions for Organizations - Improvements to systems, procedures, operating prac- tices or training programs. Requires coor- dination with the Principal Inspector (PI)/ Certificate Holding District Office (CHDO). Although the FAA’s new Compliance Philosophy favors remedial training over enforcement actions, FAA per- sonnel have been advised that the new FAA Compliance Philosophy is not about being “softer.” Rather, it is about shifting the focus to where it should be–on correcting safety issues within the National Airspace System and preventing reoccurrence. In all cases, the goal of the FAA Compliance Philosophy is to achieve rapid compliance, mitigate the safety risk, and ensure positive and permanent changes. What Can a Certificate Holder Expect? As a seasoned aviation enforcement defense attor- ney, I can report, since October 1, 2015, I have person- ally handled at least a half dozen FAA investigations that were closed through oral counseling of airmen for deviations from regulatory standards. By contrast, over the past 25 years, each one of those cases would have resulted in a certificate suspension or civil penalty. A Recent FAA Enforcement Case Although the FAA’s newly enacted Compliance Philosophy is encouraging, I remain cautiously optimis- tic as I continue to represent certificate holders against FAA enforcement actions. Recently, I had an opportu- nity to defend against the FAA’s proposed 180-day sus- pension of an Airline Transport Pilot (ATP) certificate held by the chief pilot of a Part 135 certificate holder. After reviewing the FAA’s enforcement investiga- tive report, it was obvious to me that the agency lacked substantial justification (i.e. lack of basis in fact and law) to prosecute the case. Therefore, my client ap- pealed the Order of Suspension and a hearing was held before the Chief Administrative Law Judge of the National Transportation Safety Board (NTSB). The following synopsis is definitely worth the read. Trust me, you can’t make this stuff up! Factual Background This case involved the single flight of a twin-engine pis- ton aircraft from Saint Martin (SXM) to San Juan, Puerto Rico (SJU) on January 2, 2014. The aircraft was operated by a Part 135 certificate holder and piloted by its chief pilot, who also served as the company’s check airman. After landing at SJU, FAA Inspectors conducted a ramp inspection of the aircraft. During the ramp inspection, the FAA Inspectors allegedly discovered that (1) the left wing of the aircraft had evidence of fuel stains; (2) both propel- lers exhibited erosion; and (3) the trailing edge of the right wing tip fiberglass fairing was separated. One of the FAA Inspectors took photographs of the alleged damage with a cell phone camera. As a result, the photos were out of focus and lacked any scale to determine accurate measurements. Following completion of the ramp inspection, the FAA Inspectors gave a handwritten note to the operator’s station manager, which outlined the above-referenced findings. No information was provided by the FAA to the captain. Almost six months later, on June 23, 2014, the FAA issued a Notice of Proposed Certificate Action Continued on page 23 Aviation Business Journal | 1st Quarter 2016 21
