Point Of Law: Will The FAA Reverse Its Compliance Philosophy?

This has been a hard year for aviation. Recent statements by Transportation Secretary Sean Duffy have raised doubts about the future of the FAA’s approach to enforcement. Following multiple well-publicized safety incidents at airports, including a near-collision between a private jet and a Southwest Airlines plane in Chicago in February, Duffy suggested a stricter approach for safety violations. In an interview regarding the incident, Duffy asserted that pilots who fail to comply with air traffic controller orders should lose their licenses.

The new secretary might not be aware of the recent history of FAA enforcement. In 2015, the FAA introduced the “Compliance Philosophy.” The Compliance Philosophy marked a shift in the FAA’s safety oversight strategy from punitive enforcement to a more collaborative, solution-oriented approach. The Compliance Policy aims to encourage transparency and cooperation between individuals and FAA personnel to identify the root causes of safety incidents, reflecting the agency’s belief that enforcement actions sometimes hinder open and honest communication. Similarly, by adopting case-by-case review, the policy recognizes that flight crew mistakes can occur due to training issues, accidents or ineffective procedures. A thorough review helps identify institutional safety gaps and patterns, thus contributing to enhanced safety procedures in the future. Rather than immediate legal action, the policy advises FAA personnel to correct safety deviations through root cause analysis, investigation, counseling, supplementary education and procedural changes. Compliance actions can range from on-the-spot corrections to remedial training.

Regardless, the FAA never stopped utilizing legal enforcement when necessary. The agency has maintained it has zero tolerance for intentional or reckless actions and will hold individuals accountable for inappropriate risks or lack of cooperation. Legal enforcement actions, including certificate suspensions and civil penalties, are still regularly applied. This is particularly true in cases of intentional deviation, criminal behavior, significant safety threats or in instances where statute requires it.

The FAA’s most recent update to the Compliance Program, Order 8000.373C, was released in 2022. Order 8000.373C, a guidance document, lacks the force of law and is intended to guide FAA personnel internally while clarifying existing legal or policy requirements for the public. Although the order does not carry legal authority, aviation industry stakeholders often rely on guidance documents to manage expectations and conform their conduct.

While updating the Compliance Program will not require the traditional, stringent notice-and-comment rulemaking procedures, the Transportation Department’s Administrative Rulemaking Guidance acknowledges that all guidance documents are still subject to administrative protections to ensure their transparency and limited scope. Before issuance, guidance documents undergo legal review to confirm they are written in plain language and do not impose any substantive legal requirements beyond what is specified by statute or regulation. Moreover, if a guidance document suggests conduct that surpasses existing legal requirements, it must include a clear statement explaining that it does not have the force of law and is not intended to bind the public. Additionally, recognizing that even nonbinding guidance documents can have a broad impact on regulated entities, internal policies require a good faith cost assessment of the guidance’s effect. Moreover, certain guidance documents may be subject to public notice, comment opportunities and publication after issuance. The Transportation Department’s procedures allow stakeholders to petition for the withdrawal or modification of these guidance documents.

Given the policy’s length and the public’s reliance on it, the FAA would likely publicly highlight the policy’s modifications and its rationale. Importantly, despite any changes to the Compliance Policy, individuals who are subject to enforcement actions, such as certificate suspension, are still entitled to procedural protections to ensure that actions remain lawful, reasonable and consistent with administrative policy.

Will the administration follow through on Duffy’s comments? Hopefully not. The current Compliance Program shows that the FAA has truly adopted the “just culture” aspects of Safety Management Systems. The Compliance Program encourages pilots, mechanics and the industry as a whole to cooperate with the FAA in reducing violations and mistakes.

Draconian enforcement does not promote safety, and in the age of the unofficial Department of Governmental Efficiency, it is worth noting that draconian enforcement is more expensive. More FAA inspectors and more FAA lawyers would be required to go back to the bad old days of heavy-handed enforcement. Hopefully, we will have a new FAA administrator soon, one who understands that the current Compliance Program works.