AIN Blog: Torqued: Can You Trust the FAA?

AINonline
May 1, 2013 - 4:40am

Voluntary safety programs are based on trust. Can you trust the FAA? The short answer, when it comes to voluntarily reporting violations or voluntarily cooperating with an FAA investigation, is no. You absolutely cannot trust the FAA to look out for your interests, especially the interests of maintaining your certificate or livelihood. In fact, you can expect the FAA to use anything and everything you say to them against you.

Let me explain. I haven’t felt this mistrustful of the FAA in a long time. Yes, of course, there was a time when no airman in his or her right mind trusted the FAA (we knew when the FAA showed up they weren’t there to help us) but then along came Asap, remedial training and other voluntary programs that encouraged cooperation with the agency, and the atmosphere in Flight Standards started to change. It seemed that starting sometime in the early years of the 21st century, the FAA figured out what many advanced aviation nations already knew: rigid, punitive enforcement systems don’t get far in encouraging airmen to come forward with safety information only they can know.  Some FAA inspector sitting in an office isn’t going to know what’s happening on the line or in the hangar unless someone who actually flies the line or works in the hangar tells him.

So for a while it seemed the FAA really worked hard with the industry to convince airmen that cooperating with the FAA by reporting safety violations–even their own–or cooperating with the FAA in investigating safety violations, would be in the best interests of the aviation system and the airmen’s cooperation would be met with leniency, if not immunity. Well, seems those days are over. The game has changed and not for the better. Not for the best interests of aviation safety and certainly not for the best interests of airmen used to a free exchange with FAA inspectors they trusted.

The FAA’s past efforts to gain the industry’s trust were based on what most everyone in the safety business knows is true: the only way to continue to drive the accident rate down is to get access to information about safety issues known only to people working in the system–mechanics, dispatchers, pilots, air traffic controllers and other front-line employees. And the only way to get access to this information is for the individuals to trust that they can share the information that may implicate them in safety lapses or violations without fear of getting fired by their employers or prosecuted by the FAA.

Lawyer Up

So while I came to trust that the FAA could be trusted with these voluntary programs–and would rather forego enforcement cases in the interests of maintaining the free flow of important safety information from the only sources of that information–I am now convinced that that trust is seriously misplaced. What has changed my opinion and driven me to write this article are two recent enforcement cases I’ve been involved with–not as a target, but as an expert witness. These cases have led me to conclude that an airman (that includes mechanics, aircraft dispatchers, parachute riggers, air traffic controllers and, yes, of course, pilots) cooperates with the FAA at his own peril, more specifically at the risk of the suspension or revocation of his certificate. 

Without getting into the specific details of the cases since their appeals are wending their way through the enforcement system, suffice it to say that in both instances the entire FAA enforcement case was predicated exclusively on statements made by the airmen. Other than the voluntary statements they made to the FAA–because they were used to a spirit of cooperation with their local FSDO–there was not a shred of evidence against them. The inspectors stated this clearly in open court and it’s there in the transcript for anyone to read. But for statements voluntarily provided by these airmen, the FAA would not–could not–have known that there was a basis to believe that a regulation was violated. Talk about loose lips sinking ships. In this case, of course, the sunk ships were their own certificates.

So, what’s an airman to do? First off, unless you’re independently wealthy or belong to a union that provides you with legal help (that’s an attorney, not a union rep) in enforcement cases, stop reading and sign up for a legal services plan. Now. The cost of these legal services plans amounts to pennies a day and can save you a world of hurt if you get into trouble with the FAA. AOPA runs the oldest and best known one for pilots. PAMA has one for mechanics and repairmen. Fortunately for mechanics and pilots, both plans are managed by the law firm of Yodice Associates, with decades of experience representing airmen and companies in FAA enforcement cases. 

Attorneys are prohibitively expensive for the average person with no legal services plan, and fighting the FAA in an enforcement case requires good legal advice, even more so since the FAA is using the Pilot Bill of Rights (intended to give pilots and other airmen more protections) to cut back those rights. Of particular concern, the FAA is aggressively using the Federal Rules of Evidence to hinder an airman’s ability to present his or her case. Much as I hate to say this, the only chance an airman has is with competent counsel. And, yes, I was afraid that the FAA would use this new law against airmen. But there’s no point in revisiting the wisdom of this law. It’s the law and it’s what we have to deal with today. 

Secondly, under no circumstances speak with an FAA inspector or lawyer–other than providing the minimum information required by the FARs–without first consulting with experienced, legal counsel. That means someone who is experienced in the FARs, NTSB rules and associated regulations and laws. See above: AOPA and PAMA legal services plans. The FAA can and will use any information you provide against you. If you’ve gotten used to responding informally to FAA inspectors asking questions, think twice before responding. And call for legal advice first.

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richard brown
on May 1, 2013 - 6:48am

Using the ASAP program isn't a get out of jail free card. If a person intentionally violates a regulation, coming forward must result in legal enforcement action. If you can't discuss the small details of your cases that allow one to determine whether the mandatory enforcement triggers have been met, then there's no way to judge whether your concerns are justified. Most FAA Flight Standards Inspectors I know prefer an ASAP disclosure than an enforcement discovery. Also, if one has intentionally violated a rule, say for company convenience, don't expect your company to cover you. More than likely, they'll offer your head for corrective action purposes.

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Jeff King
on May 1, 2013 - 1:38pm

Excellent article... everyone needs to read it and live by it. And in case we have a few doubters... when the man from the government shows up and says he is here to help you.... he isn't.

One thing was left out when it comes to accidents. A large percentage of GA investigations by the NTSB are what are called "desk investigations". This is where the NTSB doesn't' come out or directly participate in the investigation but instead uses the FAA investigation... whose goals may and often are different.

I don't fault the FAA at all for this... I know what they are about... don't like it but they don't hide it. However IMHO the NTSB is a fraud upon general aviation...... an organization who preports to be concerned about GA safety but mostly just sits on their butts in these matters. If they truly where concerned about GA safety they would be having their own independent safety investigations without the threat of certificate action hanging over an airman who is candid.

And it shouldn't matter if someone died and/or if a celebrity was involved for the NTSB to come to an accident site . Their goal should be to learn from and hopefully prevent future accidents. Now I'm not at all suggesting a bad pilot should walk free... however to effectively learn from an accident all the cards have to be on the table and no lawyering up. The NTSB should infact take a lesson from the NASA reporting system.

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John T. Van Geffen
on May 13, 2013 - 6:06pm

I agree that it is a slippery slope should certificate holders believe any disclosure of a mishap will result in a certificate action.

When a client contacts me to discuss whether an apparent violation is covered by their applicable voluntary disclosure program, I ask five questions:

1. Will notification to the FAA be done immediately after detecting the violation and before the agency has learned of it by other means;

2. Was the violation inadvertent;

3. Will the agency agree that the violation does not indicate a lack, or reasonable question, of qualifications of the certificate holder;

4. Was immediate action taken to respond to the apparent mishap and stop any ongoing violation; and

5. Have you developed a comprehensive fix and created a schedule for implementation? (Always suggest a follow-up self-audit to ensure corrective actions have been taken)

If the certificate holder can answer all these questions in the affirmative then the FAA should not initiate an enforcement action because safety of flight is being served through disclosure.

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Richard Wyeroski
on August 9, 2013 - 11:34am

Mr Golia's article is nothing new. If FAA management has an ax to grind with an individual or company, the word goes out and eventually that person or company will have a problem with the FAA.

The FAA is made up of 9 Regional Offices and about 90 Flight Standard District Offices. All literally, do not talk with each other. There is no standardization and FAA has always been a a reactive agency spring load to react on media attention and public opinion.

Congress needs to look at FAA and restructure the agency.

Most FAA managers make the top of the government pay scale of $179,900 dollars...... This is all they care about.

SHUT-UP AND COVER-UP IS THE FAA MOTO!

Don't scare the public!

FAA is broken and needs to be replaced

Richard Wyerosk, former FAA Safety Inspector Operations
FAA Whistleblowers Alliance Member

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