Reflections from John Duncan, FAA Director of Flight Standards Service, on the new FAA Compliance Philosophy
FAA Administrator Michael Huerta announced what has become known as Compliance Philosophy on June 26, 2015 in Administrative Order 8000.373. Since then, the FAA has either enacted or revised several policy and guidance documents to clarify and the breadth and implementation of this program. In its simplest terms, Compliance Philosophy is a formal effort to prefer education and training over penalization as a means to address innocent mistakes.
On the first anniversary of this bold initiative, our own Alan L. Farkas, Chairman of EAA’s Legal Advisory Council and Co-Chair of law firm, Smith Amundsen’s Aviation Division, sat down with John Duncan, the Director of FAA Flight Standards, to gain some insight on the state of Compliance Philosophy.
AF: John, thanks for taking the time to bring us up to speed. Would you mind starting with a high level overview?
JD: My pleasure. First, Compliance Philosophy is about finding problems and using the most appropriate way to fix them in a sustainable way. When working with an airman who intends to comply and is able to comply, Aviation Safety Inspectors (“ASI”) will use non-enforcement actions as an initial response to correct regulatory deviations. These actions, called compliance actions, include on-the-spot corrections, counseling, and remedial training. Note, there are still times where enforcement will be necessary, such as cases involving intentional, criminal or reckless behavior. Also, the FAA’s response to an event will not be based on the outcome of the event. In other words, whether or not an accident, incident, or other negative event occurred will not drive FAA action. Rather, we focus on the underlying behavior that led to the event. Finally, no matter what actions the FAA or the airman take, the Compliance Philosophy emphasizes that the underlying safety issue must always be fixed. This requires that the airman must be both willing and able to correct whatever caused the deviation.
AF: Is there a reason that you use the phrase “regulatory deviation,” instead of calling these episodes “violations?”
JD: Yes, my choice of words is intentional and really goes to the heart of the program. A compliance action is not a finding of a violation and is not documented or treated like one. Compliance is expected and required of everyone who operates in the National Airspace System, or NAS. Compliance means following the rules, but it also means going beyond the rules by taking proactive measures to find problems and fix them to manage or mitigate the risk they create in the system. The FAA Compliance Philosophy articulates the agency’s culture shift to using safety management principles to proactively address emerging safety risks. We are making this change because the aviation environment has reached a level of complexity where we cannot achieve further safety improvements by following a purely rule-based approach. The FAA’s Compliance Philosophy Order is based on two core premises. The first is that most people want to operate in compliance with the rules. We know that pilots don’t walk out to the airplane thinking of ways to break the rules; they intend to comply and they make efforts to do so. We are all human, though, and mistakes happen to the best of us. In most cases, failure to comply with the rules happens as the result of things like simple mistakes, lack of training, lack of knowledge, diminished skills, or flawed procedures. It’s not okay to do nothing when these errors occur, because they can have serious safety consequence in our highly complex airspace. But the correct response to inadvertent errors is not blame, which looks backward and focuses on punishment for what’s already happened. Rather, we seek accountability, which takes responsibility and looks forward. Accountability is about finding the problem, using the most effective tools to fix it, and monitoring to be sure it stays fixed. The second is that the greatest safety risk in the NAS does not arise from a specific event or its outcome. Instead, we have to evaluate risk based on the operator’s willingness and ability to comply with safety standards. The greatest risk comes from an operator who is unwilling or unable to comply with rules and best practices for safety.
AF: John, since the success of this program is largely on your shoulders, I wonder if you wouldn’t mind telling us a bit about your background.
JD: Sure. I Became the director of the FAA Flight Standards Service (AFS) in September 2013. That makes me responsible for the development, coordination, and execution of policies, standards, systems, and procedures; public rules, regulations, and standards; and program plans issued by or on behalf of the Administrator. I worked my way up through the FAA since I became an ASI in Cincinnati, Ohio in 1986, where I served as a Principal Operations Inspector and Unit Supervisor. During the course of my career, I’ve been stationed in Houston, Kansas City, Anchorage, and now I’m at Headquarters in Washington, D.C., and I should be clear that my responsibilities have included oversight of Air Carrier operations as well as the full spectrum of general aviation activities.
AF: I understand you’ve got quite a few hours of pilot time under your belt, as well.
JD: I started flying in 1964 at Titusville, Florida. I built time as a flight instructor, chief pilot, chief flight instructor, corporate pilot, and eventually an air carrier pilot. That’s mostly what I did over 20 years before I joined the FAA. I’m an ATP, a CFI, and I have commercial privileges in seaplanes and gliders. I own a Cherokee and a Titan Tornado that I flew to AirVenture in 2014. And, I’m a longtime EAA member.
AF: You’re going to be stopped by a lot of fellow EAA members to talk about your flying adventures when you return this summer. But, let’s get back to Compliance Philosophy. How has CP been implemented?
JD: Compliance Philosophy is a “simple” idea, but it has many moving parts that require attention to achieve the intended outcome. A Compliance Action is any of the non-enforcement methods we can use to correct unintentional deviations or noncompliance that arise from factors such as flawed systems and procedures, simple mistakes, lack of understanding, or diminished skills. A Compliance Action is not an adjudication, and it does not constitute a finding of violation.
Compliance Actions include on-the-spot correction, additional training, counseling, and revisions to systems, procedures, and training programs.
AF: The ASI is your direct contact with the operator or airman. What guidance is given to the ASI on when to use a compliance action and when to turn a file over to legal, for enforcement action?
JD: The ASI must consider several factors that make an airman or organization a good candidate to recommend a Compliance Action as a solution to a regulatory deviation. Does the airman/organization consistently perform in a positive manner toward regulatory requirements? Does the airman/organization understand or recognize its role in the deviation? Does the airman/organization cooperate with FAA personnel to achieve compliance? Does the airman/organization take the necessary actions to come into and maintain compliance? Are there repeated failures to take corrective actions or repeated deviations? Is the airman/organization noncompliant in more than one area? Does it involve multiple personnel? These questions are contained in FAA guidance materials (Order 8900.1, Vol 14, Ch. 1, Sec. 2), along with fairly specific additional instructions. Also, I like to emphasize that the individual must be willing, meaning they acknowledges responsibility, share information to help determine the cause of the deviation, and promptly implements the corrective action. At the same time, the individual must be able, and this means they must have the time and resources to correct the deviation, they need the technical competence to comply, and they must have access to data, equipment, facilities, etc. to comply with regulatory requirements and appropriately manage the risks involved.
AF: Can you give us some specific examples of what is and isn't covered by CP?
JD: Not all regulatory deviations qualify for Compliance Philosophy guidance. There are those deviations that require stronger enforcement measures such as intentional or reckless deviations from regulatory standards. Each case is unique and must be evaluated thoroughly before making a determination. In general terms: An airman who is unwilling is someone who knowingly violates regulations, or one who takes inappropriate risks. We also use the term “unwilling” to describe a pilot who does not cooperate or collaborate in the effort to find the problem and fix it in a sustainable way. An airman who is unable is one who fundamentally lacks the skills or qualifications needed to comply with the rules. That’s different from someone who has the skills or qualifications, but makes an error for some of the reasons listed earlier. Specifically, actions not eligible for Compliance Action involve Intentional or Reckless Deviations, individuals who demonstrate that they are unwilling or unable to comply, violations involving law enforcement, matters that raise questions of competence or qualification, and re-examination under section 709.
On the other end of the Compliance Philosophy, the enforcement tool is used for cases involving someone who is unwilling or unable to comply. Enforcement is a means to rehabilitate and bring those individuals or operators back into compliance–back into the category of those who are both willing and able to meet standards. If a pilot continues to be unwilling or unable, though, we use stronger enforcement to move that person out of the NAS.
Here is a real-world example: A state park officer observed a low flying airplane from his boat. The officer estimated that the aircraft was approximately 250 feet vertical and less than 25 feet laterally away from the officer. The officer contacted the FAA and an ASI met with the aircraft owner/pilot and he confirmed that was flying over the park taking low-level photos. The pilot said he just didn’t see the boat and the flight over the officer was inadvertent. The ASI counseled the pilot on minimum safe altitudes and the finer points of 91.119. The pilot displayed a positive attitude, noted that this was his first encounter with the FAA, and that he would not repeat the violation in the future. And, the event was closed with that.
AF: John, as part of the Pilots’ Bill of Rights, airmen are told that they have no obligation to respond to an ASI’s questions, and that there will be no adverse consequences for exercising their right to remain silent. How does this fit with Compliance Philosophy?
JD: To be clear, refusal to speak with the FAA immediately after an event, or obtaining legal counsel at any point in the investigation does not rule out Compliance Action; airmen are free to exercise their rights without repercussions. In fact, the brochure that we’ve created to explain Compliance Philosophy to individuals in the system sets out the PBOR notices that you referenced. Keep in mind, we must see that the problem is fixed, the risk is mitigated. If someone is unwilling to cooperate in a Compliance Action, enforcement is the only tool we have available.
AF: How does the FAA reconcile Compliance Philosophy with its practice of suspending pilot certificates for inadvertent breaches of presidential temporary flight restrictions?
JD: The FAA has been looking at existing policies to determine if they are aligned with the Compliance Philosophy. Yes, the FAA had a special emphasis program for National Security Airspace violations, including breaching presidential TFRs. The FAA bulletin outlining this program prescribed mandatory certificate suspension periods for those pilots who inadvertently entered into secured airspace without an appropriate clearance or transponder code. In accordance with the Compliance Philosophy, we withdrew the bulletin last February. Consequently, FAA personnel can address airspace violations with compliance actions when appropriate.
AF: Are there any checks in place to ensure that CP is working as expected?
JD: An AFS Employee Survey was conducted last fall and sent to all AFS employees—approximately 5,245 people. The survey focused on the FAA Compliance Philosophy and the readiness of employees to engage with changes instituted by the new philosophy. Overall, employees reported a high level of agreement with each of the statements designed to measure awareness of the Compliance Philosophy, desire to follow it, knowledge of the policy documents, ability to apply the philosophy, and reinforcement of the philosophy.
AFS chartered the Compliance Philosophy Focus Team to ensure ongoing leadership support and oversight of the Compliance Policy. Team members provide direct support to inspectors, necessary guidance updates, training development, and implementation within Flight Standards. The AFS CP Focus team continues to monitor workforce understanding through a number of different mechanisms, including direct feedback sessions with field offices.
AF: What do the numbers show?
JD: While the Compliance Philosophy is in its initial stages, the data we have seen so far is positive. For example, within the Flight Standards Service, in the period from October, 2015 through May, 2016, we closed over 2,900 Compliance Actions. These represent identified, documented, and corrected regulatory issues without the need of enforcement. They also represent the identification, documentation and correction of many regulatory precursors or potential safety risks that were mitigated early on, raising the overall safety in the NAS to a higher level.
Of course, AFS is still using Enforcement Actions. In the same timeframe, Flight Standards started approximately 800 Administrative and Legal Enforcement Actions against those who were unwilling or unable to comply, or who would not cooperate in fixing the safety problem. This figure is a significant decrease in use of enforcement actions for the same timeframe in prior years.
AF: Is FAA keeping any records of CA cases?
JD: Sure. Documenting the rationale for a Compliance Action is very important. ASIs are required to document the facts and explain the reason for the decisions made within the Compliance Action or Enforcement Action via entries and comments in our Program Tracking and Reporting Subsystem (PTRS).
These records are very important because actions become intangible or abstract as time passes. In order to make an action tangible, we need a record that fully captures the requirements in the guidance. This includes establishing who, what, where, when and–most importantly– the why and how. The PTRS comments must include the minimum details, required by the guidance, for compliance actions.
AF: Are the records de-identified in any way?
AF: Are there any plans to expunge these records?
JD: The records remain in PTRS, just like other non-enforcement records associated with an individual, such as certification. But, here’s the distinction. Unlike an enforcement action, a compliance action is not maintained in the FAA’s Enforcement Information System. As I said before, a compliance action is not a finding of a violation and is not documented or treated like one. As an example, a compliance action documented for an individual would not be reported as an enforcement action under the Pilot Records Improvement Act (PRIA).
AF: What are the long term goals of CP?
JD: The Compliance Philosophy promotes the highest level of safety and compliance with regulatory standards. Compliance Philosophy recognizes that for permanent change, we have to look at issues such as underlying personal behaviors, environmental conditions, organizational or individual processes that led to an event, and how those things were managed. We cannot focus solely on just the last link in the chain, or on the outcome of an event. We have to fix the root causes that could lead to more events.
The Compliance Philosophy requires new mindsets and new behaviors from both the FAA and the community. These include the expectation and appreciation for self-disclosure of errors, and recognition that compliance means operating according to both the letter and the spirit of the law. We need to adopt safety management principles – including on the individual level -- to ensure we remain compliant with the regulations and other safety standards. Through a more transparent exchange of information, the FAA and aviation community will be better able to address the full range of safety issues before they result in a negative occurrence. It will take effort from all of us, and it won’t be perfect. But the kind of change we are promoting is essential to achieving our safety mission, and the results will justify the effort it requires.
AF: John, we really appreciate the time that you and your staff have put into this program and we’re honored that you’ve given the EAA this opportunity to learn more about Compliance Philosophy.