unimpressed. The Compliance Philosophy Order also contains the statement that “[m]atters involving com- petence or qualification[s]” will be addressed using the “appropriate” remedial measure, which might include retraining or enforcement. That additional state- ment effectively removes requests for re-examination from the reach of the Compliance Philosophy since, by definition, a request to re-examine is a matter involving competence or qualification. Recently, I have seen so-called “709 Requests” that appear based on inspectors’ frustration that because of the new Compliance Philosophy their management would not support a legal enforcement action. True, the standard for whether a request meets the statutory require- ment for “reasonableness” remains low, but it is not non-existent. The NTSB has held that such a request must be based on a finding that the certificate holder’s actions (or inactions) could have been the cause of the event in question (accident or incident). Flight Standards has set for itself a higher standard, requir- ing a finding that the “airman’s competence was the apparent cause of the occurrence.” Sometimes, I think that inspectors base their 709 Requests solely on the conclusion that, regardless of the evidence, if a pilot ended up in that situation, the pilot must have done something wrong, so a 709 Request is in order. Then, after issuing the 709 Request, the inspector gradually expands the scope of the examination until, finally, the pilot faces a complete certification flight check. Unfortunately, pilots often resolve to take the re- examination flight check rather than challenge the basis for the request. Challenging the FAA in this con- text means initially accepting an Emergency Order of Suspension and possibly engaging counsel. Inspectors will often use the rationale that the scope of the check must broaden as the length of time grows between the time of the request and the time of the re-examination flight. So, under the present policies, challenging the request runs counter to the pilot’s interests by delaying the flight check, which results in an expanded scope of the check. Not challenging the request only reinforces inspectors’ belief that 709 Requests can be sent at any time for any reason with no checks and balances. Flight Standards management and the FAA Legal Office should help keep the re-examination process Aviation Business Journal | 4th Quarter 2017 fair and reasonable by insisting that requests are based on articulable conduct that the inspector uses to demonstrate a real question about the pilot’s quali- fications. Such evidence should also be included in the original letter to the pilot, along with a detailed description of the scope of the re-examination with reference to the Airman Certification Standards. Additionally, Flight Standards should limit the scope of such re-examination flights to just those tasks in the Airman Certification Standards implicated by the conduct, regardless of the length of time from the date of the request to the date of the exam. ■■ Avoid leveraging individual pilots into providing evidence against companies under investigation for operating air carrier or commercial opera- tions without a Part 119 operating certificate. It is no secret that one of the more frustrating compliance and enforcement efforts for the FAA is finding and taking meaningful action against those companies that hold out to the public an ability to conduct flight operations covered by Part 119, but do not hold the proper authorizations to do so. Those companies harm the industry by providing what appears to the public to be services similar or the same as certificated operators, but without incurring the expenses of certification. Those operators, therefore, can charge their customers less than their certified competition, but often provide a lower margin of safety to their passengers. Educating new entrants to the market of all the requirements of Part 119 certifica- tion has proved to be one of the biggest challenges for the Flight Standards Service, and the Drug Abatement Division of the Office of Aerospace Medicine. Perhaps that is the reason why the regulations in Parts 121 and 135 make the aircrew just as responsible for some of those requirements (such as flight and duty time requirements) as the company for which they work. Nevertheless, it appears that the culture within Flight Standards drives inspectors to attempt to lever- age individual pilots into providing evidence against their company. That practice puts the certificate hold- ers, who are least able to challenge their employer, and least able to put their certificates at risk, in the Continued on page 21 19
