“Is there a way for the FAA to better manage its field and regional agents … so that certificated entities don’t have to consistently deal with an agent that is being overly difficult due to a lack of experience, a personal bias, are overloaded or overwhelmed with work, or are unresponsive?”
That question was submitted to ARSA’s inquiry system – a tool providing the “access to industry expertise” proclaimed in the association’s list of member benefits. The response, which was published in a recent edition of the hotline member newsletter, described the FAA programs that address disputes between certificate holders and agency personnel. When employed, these avenues are hard to follow and often take years to reach a resolution. That, however, should not stop the industry from using the tools provided – whether an official program or simply through ongoing professional discussion with agency personnel.
Unfortunately, most certificate holders (and applicants) are “forced” to deal with recalcitrant inspectors or unreasonable demands in the interest of business and because, frankly, the certificate holder believes that the agency’s “approval” means that something will never be questioned again. Or, more importantly, the belief and sometimes the fact that you will win the battle (in challenging the inspector) but lose the war (by suffering long-term conflict after having been “difficult").
ARSA finds that people want to believe the agency “knows” its rules and compliance standards and will make sure those requirements are fulfilled by the industry. That is blatantly and completely untrue – the agency has the responsibility to create and enforce rules but not to follow them. It has complete discretion in enforcement (it only has to enforce regulations that are required by “law” such as taking the certificate of persons convicted of certain federal crimes associated with aircraft parts).
If you doubt that fact, the association can point you to several court cases. The laws and courts have also made clear that the agency doesn’t have to follow its “orders” and is immune from lawsuits for exercising its “discretion.” In other words, even if the agency “approves” a type design that is clearly flawed, it cannot be sued – the certificate holder is always responsible for compliance … period.
So why are individual certificate holders (or applicants) afraid to “take on city hall”? Well, in ARSA’s experience it is because it is damn hard work and it takes consistency and discipline. Also, individuals responsible for obtaining and maintaining certificates are not the persons with the purse strings. The “demand” is that a company obtain a certificate, if it takes going along to get along, so be it – the price of not understanding and absolutely “knowing” the regulations can be paid “later.” If the FAA representative is “upset,” the project will take longer and every step after that is a “fight.” Also, quite frankly, most certificate holders are not steeped in regulatory compliance, they are in quality, production, or some other discipline that is more focused on business demands than aviation safety requirements.
It is equally interesting, however, how “afraid” aviation safety inspectors and other FAA representatives are of “lawyers.” When a certificate holder finally “has enough” and reaches out to a law firm, the agency representative will no longer “talk” to the applicant or company contact. The company is “threatened” that the FAA lawyers will have to be involved or that the company will be deemed uncooperative or anti-compliant.
As a lawyer who understands the regulations often better than either the applicant or the agency representative, I find this a bit amusing. Why is the government afraid? Those same inspectors are turned to by the FAA lawyers as “expert witnesses” in legal enforcement cases. Ex-FAA representatives are used by industry lawyers the same way; why? Isn’t the plain language of the regulation backed by the safety intent in a preamble to the rules enough? It takes “experts” to explain the regulations to the lawyer? It seems all turned around to this legal professional.
No individual in industry or the agency should be “afraid” to question the exact meaning and intent of a regulation. No “reasonable” person should be afraid to expand knowledge and understanding of safety requirements – that information and data should be aggressively sought so that the agency, industry and flying public can have confidence that we know what we are doing and will fix what is wrong.
Sarah MacLeod is managing member of Obadal, Filler, MacLeod & Klein, P.L.C. and a founder and executive director of the Aeronautical Repair Station Association. She has advocated for individuals and companies on international aviation safety law, policy and compliance issues for 30 years.
