Gregory J. Reigel
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March 16, 2017

What Is The FAA's Regulatory Consistency Communications Board?

As you may know, the various FAA offices and inspectors within those offices routinely provide responses/guidance on issues that may be inconsistent with other FAA offices and even with other inspectors in the same office. In the past, the only way to really resolve the inconsistency was to request a formal legal interpretation from the FAA's Office of Chief Counsel. However, in 2012 the FAA Reauthorization created an FAA/Industry Committee, the “Consistency of Regulatory Interpretation Aviation Rulemaking Committee (CRI ARC)” to address this issue.

On November 28, 2012 the CRI ARC issued a Report that recommended that “the FAA establish a Regulatory Consistency Communication Board (RCCB) comprising representatives from AFS, AIR, and the Office of Chief Counsel (AGC) that would provide clarification to FAA personnel and certificate/approval holders and applicants on questions related to the application of regulations.” Based upon that recommendation, the FAA created its Regulatory Consistency Communications Board ("RCCB").

So, how does the RCCB work? Well, when one of these situations arises in which a stakeholder (e.g. a pilot, mechanic, air carrier, repair station etc.) is receiving inconsistent information from the FAA regarding application of the regulations, that stakeholder is able to submit the issue/question to the RCCB and request that it clarify application of the regulations at issue to remove/resolve the FAA's inconsistent application of those regulations. The members of the RCCB then convene and issue a resolution of the issue with each of AFS, AIR and AGC concurring in that resolution.

Although it has started slow, it appears that the RCCB is delivering as anticipated. So far it has issued at least two memorandums addressing issues presented to it by stakeholders. In one case the RCCB answered the question of whether the revision dates of maintenance manuals are required to be listed in the maintenance record entry required 14 CFR § 43.9. In another case it clarified that Type Certificate Data Sheets (TCDS) are regulatory and are included as part of the type design.

So, now if you find yourself in a situation in which you are receiving conflicting positions from the FAA regarding application of the regulations, you have two places you can go to try and get a definitive answer: the FAA's Office of Chief Counsel or the RCCB. And at some point in the future, hopefully, the FAA will also create a Master Source Guidance System, another recommendation from the CRI ARC. But it is unclear if, or when, that may happen.

Posted by Greg

February 28, 2017

How Does The FAA Calculate A Civil Penalty?

As you may have seen in the past, when the FAA wants to send a message or make a statement regarding its proposed assessment of a civil penalty, oftentimes it will issue a press release. In many instances these press releases announce proposed civil penalties in the hundreds of thousands, if not millions, of dollars for alleged regulatory violations.

Have you ever wondered how the FAA comes up with those numbers? Fortunately, or unfortunately, depending upon your perspective, the FAA doesn't just pull a number out of a hat. Rather, the FAA has guidance it is required to use when it calculates a proposed civil penalty. For a discussion of this guidance and how the FAA is supposed to use it in determining the amount of a civil penalty, please read my latest article on the topic: How Does The FAA Calculate A Civil Penalty?.

Posted by Greg

February 14, 2017

Are You Running An Illegal Flight Department Company?

Many people own aircraft using corporations or LLCs. Usually liability and tax benefits drive the decision. However, many of these ownership structures do not take into consideration regulatory requirements and, in fact, are not in compliance with the regulations. For a discussion of the flight department company trap, please read my latest article on the subject: Are You Running An Illegal Flight Department Company.

Posted by Greg

January 31, 2017

What Do You Need To Document Maintenance Or An Inspection?

Most of us know that when a mechanic performs maintenance or an inspection on an aircraft he or she then needs to somehow document the work that was actually completed. But exactly how and where is the mechanic supposed to do that? For a discussion of the FAA's answer to those questions, please read my latest article on the subject: Documenting Maintenance and Inspection Records.

Posted by Greg

January 11, 2017

What Happens to a Certificate After it is Suspended or Revoked?

So, your certificate has been suspended or, worse yet, revoked. Whether the FAA issued an order and you didn't appeal, or you appealed and lost, you are still in the same position. But what, if anything, happens next, you might ask. Well for answers to this and other questions about this situation, please read my latest article on the subject: What Happens To A Certificate When The FAA Suspends Or Revokes It?

Posted by Greg

October 04, 2016

As Long As You Hold An Airman Certificate You Must Report Motor Vehicle Actions To The FAA

If you hold an airman certificate you know, or at least you should know, that you are subject to the reporting requirements of 14 C.F.R. §61.15. That is, §61.15(e) requires an airman to report a motor vehicle action ("MVA") to the FAA Civil Aviation Security Division within 60 days. The written report must include: “(1) The person's name, address, date of birth, and airman certificate number; (2) The type of violation that resulted in the conviction or the administrative action; (3) The date of the conviction or administrative action; (4) The State that holds the record of conviction or administrative action; and (5) A statement of whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously reported motor vehicle action.”

What is an MVA? According to the regulation an MVA is (1) a violation of any Federal or State statute relating to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; (2) the cancellation, suspension, or revocation of a license to operate a motor vehicle, for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; or (3) the denial of an application for a license to operate a motor vehicle for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug.

It is important to realize that this definition includes more than just being arrested for or convicted of a DWI, OWI etc. A civil action that often accompanies a DWI arrest in most states and that results in suspension of the driver's license is also considered an MVA. Thus, an arrest for DWI could create the obligation for an airman to provide multiple reports to the FAA depending upon how the civil and criminal cases proceed. And if an airman fails to report an MVA, §61.15(f) states that he or she could be subject to (1) Denial of an application for any certificate or rating for a period of up to 1 year after the date of the arrest; or (2) Suspension or revocation of any certificate or rating.

But what happens if you hold an airman certificate but you no longer hold a medical certificate, or you have "retired" from flying? Are you still subject to this reporting requirement? The short answer is "yes", as a recent NTSB decision explains. In Administrator v. Street, the airman was an experienced airline pilot who failed to report four MVAs arising from two DWIs. When the FAA found out, it issued an order suspending the airman's ATP certificate for 240 days. On appeal, the administrative law judge ("ALJ") agreed that the airman had violated sections 61.15(d) and (e) but determined that the sanction should only be a thirty day suspension.

Not surprisingly, the FAA was unhappy with that decision and appealed to the full Board. The FAA argued that the 240 days should stick and, of course, the airman argued that the ALJ's decision should stand. Specifically, the airman argued that at the time of the violations he did not have a medical certificate and was not actively flying, which should serve as mitigating factors in support of the lower sanction. However, the Board rejected that argument stating the reporting requirements of §61.15(e) are applicable to an airman who temporarily “retires” from flying. The Board explained that "[w]hile respondent testified that he did not plan to return to flying, his obligation to comply with the FARs continued regardless of whether he was actively flying at the time the MVAs occurred. Sections 61.15(d) and (e) are exclusively concerned with conduct outside the scope of an airman’s certificate. It is immaterial whether respondent was actively flying or had a medical certificate at the time the MVAs occurred because his status as an ATP certificate holder rendered the requirements of §§ 61.15(d) and (e) applicable to him."

So, the moral of the story is: If you hold an airman certificate, you need to be familiar with, and comply with, the requirements of §61.15. Until you no longer hold your airman certificate (whether the certificate has been surrendered, suspended or revoked) you will need to report any MVA to the FAA.

Posted by Greg

August 07, 2016

Update On The FAA's New Compliance Philosophy

This year at EAA's Airventure I was fortunate enough to be able to attend a continuing legal education (“CLE”) program generously presented by EAA’s Legal Advisory Council. The program hosted a number of FAA personnel to discuss the FAA’s new compliance philosophy which was announced in June, 2015 and actually went into effect October 1, 2015. The FAA representatives included John Duncan, Director of Flight Standards, James Tagmeier, Great Lakes Regional Counsel and Manager of the Midwest Enforcement Team, Jeffrey Klang, Senior Counsel – International, and Mark Bury, Deputy Chief Counsel – Enforcement & Regulations.

When it was issued, this new philosophy appeared to be a positive shift in the FAA's national enforcement policy. But the rubber really hits the runway with the inspectors at the FSDO level. So, at the time my concern was whether this philosophy would actually trickle down to the FAA inspectors and whether this would philosophy would apply to all divisions within the FAA.

Which brings us to the CLE program nearly one year later. According to John Duncan, the new compliance philosophy has been implemented agency-wide. That is, all divisions within the FAA are required to apply the new compliance philosophy. Although he did note that some divisions, such as the drug abatement and the security divisions, may not be implementing the philosophy as aggressively as others such as flight standards. While this is good to know, from my perspective, it does not appear to me that those divisions of the FAA have truly embraced or implemented the new philosophy. But it is good to know that they are supposed to be applying the new philosophy.

Both John Duncan and James Tagmeier emphasized that the philosophy is being applied to those certificate holders who are both “willing and able” to comply with the goals of returning the certificate holder to compliance and ensuring future compliance. In the event that the certificate holder is either unwilling or unable to be “rehabilitated”, then the philosophy dictates that the certificate holder be removed from the national air space (“NAS”) (e.g. via certificate suspension or revocation).

What does this mean for FAA inspectors? John Duncan indicated that in all cases the FAA’s priorities are to (1) deal with the risk posed or created by the certificate holder and, only then, (2) determine if a violation has occurred. According to John, inspectors who are initially investigating a situation will assume that a compliance action will be used. Legal enforcement action will only be considered after the investigation reveals that a compliance action is not appropriate.

What does this mean for certificate holders? Generally it means that the risk of a legal enforcement action has been significantly reduced. According to John Duncan, as of April 2016 the FAA had process approximately 2,200 compliance actions. In the absence of the new philosophy, I suspect a significant number of those cases would have resulted in certificate actions.

But, here is the catch: In order to take advantage of this new philosophy, the FAA inspectors require that a certificate holder talk to them to discuss the “how” and “why” the risk was created as well as options for making sure it doesn’t happen again. Without that information, it makes it difficult for the inspectors to determine whether the situation can be resolved with a compliance action.

From my perspective as an aviation attorney who defends certificate holders against FAA legal enforcement action, this approach raises concerns that the certificate holder will provide the inspector with information that could later be used against the certificate holder in an enforcement action. In the past, my typical advice to certificate holders was to either not speak with the inspector or to at least not volunteer any information that could later come back to bite the certificate holder. Under the new philosophy, that isn’t necessarily the best advice.

Now a certificate holder must carefully analyze the situation to try and determine whether the situation will qualify for a compliance action before the certificate holder starts to volunteer information to the inspector. While resolution of the case through a compliance action is definitely preferable, the certificate holder should try and avoid disclosing information that could preclude a compliance action or that would put the certificate holder in a more difficult position if the FAA pursues legal enforcement action. Discussing the matter with a knowledgeable aviation attorney before you speak with the inspector can certainly assist in making this decision.

The FAA’s new compliance philosophy is definitely a step in the right direction. It is benefitting both certificate holders and the safety of the NAS. As with any change, it does raise some concerns and issues that will yet need to be worked out. However, after nearly a year the new policy seems to be working.

Posted by Greg

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