FAA Inspector “Cooling Off” Rule Takes Effect October 21

On October 21, 2011, the FAA’s new “cooling off” rule will take effect. The rule requires a two-year “cooling off” period before former FAA safety inspectors can represent certificate holders on certain matters before the FAA.  It applies to all entities holding certificates under the Federal Aviation Regulations (FAR).  This includes FAR Part 121, 125 and 135 operators and Part 91K fractional program managers, as well as Part 145 repair stations, specialized rotorcraft and agricultural operations, and instructional schools.

The rule was prompted by the FAA’s perceived “chumminess” with the air carrier industry.  In March 2008, the FAA assessed a $10.2 million civil penalty against Southwest Airlines for operating 46 airplanes without performing mandatory fuselage fatigue cracking inspections.  The DOT Office of Inspector General (OIG) later investigated the incident.  It concluded that the FAA Certificate Management Office (CMO) overseeing Southwest’s operations had developed an “overly collaborative relationship” with the carrier and effectively gave Southwest a free pass on the inspections.

In order to reduce this influence (and Congressional indignation over the incident), the OIG recommended that ASIs be barred for two years after leaving the FAA from acting as FAA liaisons for those carriers they previously inspected.  In line with this recommendation, former ASIs under the new FAA rule are banned from acting as an agent or representative of a covered operator in any matter before the FAA if, in the preceding two–year period, the ASI “served as, or was directly responsible for the oversight of” an ASI, and “had direct responsibility to inspect, or oversee the inspection of,” the operator.

Under the rule, a person “act[s] as an agent or representative” of a certificate holder in a matter before the FAA where he or she makes any written or oral communication on behalf of the holder (or any of its officers or employees) to the FAA in connection with a specific matter, “whether or not involving a specific party and without regard to whether the individual has participated in, or had responsibility for, the particular matter while serving as [an ASI].”

The bottom line is that for two years from the date they leave the FAA, former ASIs who had responsibility for an operator are barred from writing to or speaking with the FAA on behalf of the operator on any matter concerning that operator before the agency.  This rule applies even if the former inspector was not involved in the matter while with the FAA.

The proposed rule, published in November 2009, drew comments from only a handful of individuals.  The silence from the industry was complete, the carriers no doubt wanting to avoid being seen as promoting excessive coziness with their overseers.   But there are good reasons why airlines, in particular, would choose to hire inspectors direct from the FAA, since they are often the persons most familiar with the carrier and the agency, i.e. the best qualified persons for the positions.

What remains unclear is whether the rule bars a carrier from directly hiring a former inspector who supervised the carrier when he or she was at the FAA, for a senior position that typically requires direct communication with the FAA–like the Director of Operations or Maintenance.  (The preamble to the rule addresses lower level positions like pilots, mechanics and flight attendants, but says nothing about supervisory positions.)  Since the rule addresses only direct interactions with the FAA, it would seem that former ASIs should be able to participate indirectly in an operator’s matter before the FAA.  For example, a former inspector turned DO or DM could, without violating the strict terms of the rule, formulate policy, supervise personnel, direct strategy and draft communications to the FAA (as long as they are signed by another).  The former inspector could also recommend FAA points of contact to the operator, as long as the ASI does not indicate to the FAA his or her involvement in the matter.

It appears from our contacts with the FAA on this rule that the agency did not specifically contemplate this possibility.  We are trying to obtain a definite answer on this issue.  The answer is critical, since it will determine whether a carrier may hire well-qualified personnel from the FAA as they’ve done in the past.  We’ll post an update before the rule’s effective date of October 21.

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Aviation Law Advisor
Cozen O’Connor’s aviation attorneys are committed to keeping their clients apprised of recent developments in the aviation industry. The world of aviation is complex and fast-moving with many participants, including aircraft manufacturers, air carriers, airports, airport operators, FBOs, repair stations and maintenance providers, insurers, airline investors, corporate and private aircraft owners and operators, and aircraft leasing and management companies. Our clients are in every sector of the industry. This blog is just one tool that we use to keep them updated on the litigation, regulatory, legislative and international developments that affect their operations every day.
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