Incorrect data in aviation records is serious in the extreme. Aviation depends on data entry to record everything from student pilot training to air carrier compliance with airworthiness directives to scores of information on every aspect of defeating gravity safely. For that reason, air safety relies in large part on records, the accuracy of which is critical.
So, for example, it’s obvious that flight- and duty-time records used to determine whether a pilot is rested and ready for duty need to be accurate to avoid fatigue-related errors while operating an aircraft. Maintenance records need to track repairs and inspections accurately to ensure the ongoing airworthiness of the aircraft. And so it goes with every record maintained by airmen and aviation entities, regardless of their size or the scope of their operations. Those records contain significant information whose accuracy is important–often critical–to safety of flight.
Since the data in the records is so critical to air safety, it goes without saying that poorly maintained records present a big problem. Intentionally falsifying information is clearly egregious, a reprehensible act that should result in FAA enforcement action when it is uncovered. But what enforcement action is appropriate? As with all punishment, I believe that the penalty should be determined by the particular circumstances of the individual case. And there should be both prosecutorial discretion applied and judicial discretion allowed to fit those particular circumstances. That has not been the case for at least two decades when it comes to FAA enforcement of cases alleging falsification of records.
Rules Applied Unequally
Unfortunately, up until this latest change in FAA rules (the Federal Aviation Regulations contain a new section 121.9 prohibiting intentionally false or fraudulent statements in air carrier Part 121 records), the punishment for intentional falsification has been inflexible. The FAA’s enforcement policy has been clear: for years–probably decades–the agency has taken the position that intentional falsification warrants revocation of an airman’s or a company’s certificate. This policy has allowed for little leeway in dealing with the particulars of an individual situation and resulted in some pretty draconian enforcement actions, especially against airmen and smaller entities.
While purporting to allow flexibility in sanctions depending on individual circumstances, the FAA’s Compliance and Enforcement Handbook (the agency’s enforcement “bible”) has been consistently interpreted for many years to require revocation for even a single instance of intentional falsification. This has been particularly true for individuals and small entities. And not just revocation, but emergency revocation, which means that the airman’s or entity’s only opportunity to be heard comes after the certificate has been surrendered. (Talk about turning the Constitution on its head! Due process normally requires notice and an opportunity to be heard before a sanction is meted out.) The FAA’s policy on falsification resulted in countless airmen and aviation entities losing their certificates. For an airman, this meant waiting a year and then reapplying…and then taking every test necessary to regain his or her certificate.
If an airman lost his ATP, he would have to start out all over, beginning with passing his private pilot certificate. Appropriate maybe in some cases, but clearly draconian in other cases, judging by the cases I saw coming before the NTSB when I was a Board member. Some people had made terrible errors in judgment and deserved a sanction, but emergency revocation? I did not think so.
Just as mandatory minimum sentence laws can result in excessive punishments relative to the crime committed, this inflexible FAA policy resulted in unfair punishments in many instances I have seen over the years. It also sometimes had the opposite effect, especially when large entities were involved. The FAA has always been loath to shut down a large company for the same violations that it would use to shut down a smaller Part 135 or mom-and-pop repair station. Yes, the big companies do get special treatment when it comes to enforcement. So on more than a few occasions, the FAA would look away from charging intentional falsification (even when the evidence would have warranted it) to avoid the mandatory emergency revocation that the agency’s guidelines called for.
But now there seems to be some hope coming out of 800 Independence Ave. Buried in the recent changes to the Federal Aviation Regulations applicable to pilot training requirements for air carrier operations comes a new section 121.9 prohibiting intentionally false or fraudulent statements in air carrier Part 121 records. But that’s not where the good news lies. What I found particularly interesting–and hopeful–was that the potential penalties for intentional falsification of Part 121 air carrier records now include a range of penalties. Instead of just emergency revocation, the range specifically includes civil penalties. It also allows for denial of a specific application that contained intentionally false information or removal of any approval based on false information. That is a huge change from mandatory emergency revocation of a certificate.
If intentional falsification of Part 121 air carrier records can now result in a range of penalties, then clearly the same should be true for any intentional falsification committed by any person or entity–whether by a private GA pilot or mechanic or a Part 135 air taxi or a small or large repair station. Now is the time for AOPA, ARSA, NBAA and other aviation alphabet groups to start clamoring for a similar change to the rules that cover falsifications for pilots, mechanics, air taxis and repair stations.
This doesn’t mean that anyone should ever take falsification of records lightly. I am not saying that at all; I just believe that emergency revocation for every single act may neither be in the best interests of aviation safety nor in the best interests of aviation. A measured response to specific facts and specific circumstances is, after all, one of the hallmarks of a truly just enforcement system. And isn’t that what we all want?