Message expertly portrayed
Not really examine new FAA program
Compliance Program leads to relevant risk reduction
A radar, one of the remarkable technological development of World War II, has one limitation—it sees only the objects at which it is pointed. If it is sweeping in one level, it cannot detect things below it selected range.
CBS’s 60 Minutes production crew is expert at delivering its message. They did a great job of “FOIA”ing damaging evidence, marshalling experts on the FAA’s 40 year old enforcement regime, talking to Union representatives and asking the FAA pointed questions. John Duncan’s segment on the show did not include an opportunity to explain the how’s and why’s of the new, very successful Compliance Program. Flying under the Radar was a very credible show, resulting in high ratings and generating a lot of comment. But did the commentary show the full, unblurred picture?
Expanding the scope of the review, here are a few realities overlooked in the CBS production:
- In 2008 the House of Representatives, Committee on Transportation & Infrastructure Oversight and Investigations Hearing held hearing entitled “Critical Lapses in FAA Safety Oversight of Airlines: Abuses of Regulatory ‘Partnership Programs.”Most of the Members took the position that the first level FAA inspectors were right and their managers were wrong. Perhaps because the manager was removed, the field was empowered to ignore and occasionally contradict the guidance of their local supervisors and managers as well as the chain of command up to the Associate Administrator for Flight Safety. The consequence of this highly visible reprimand by the Members was an institutional inability to issue national policies.
- Glacier-like process of the issuance of regulations – the cumulative impact of the basic requirements of the Administrative Procedure Act plus multiple collateral statutes (like a Small Business Impact Statement) require significant time to draft and review a proposal. Then reviews, both within the FAA (policy, economics, legal) and above it (DOT, OMB), cause additional major delays. The gestation period from initial conceptualization to final implementation can consume as much as five to ten years. It is difficult, if not impossible, for the FAA to keep up with industry changes, the identification of new technical problems and new technology.
- For twenty or more years, the budget and staffing of the FAA have been reduced. Whether it is true or not, the internal perception is that the FAA’s capacity to regulate, following the modus operandi of the past, is less than its existing safety agenda. The assignment of inspectors, for example, to the P&W powerplants of one airline is no longer possible. Congress has sent the message that the FAA must do more with less.
- Consistency – the pattern of independent, inconsistent application of policy in the field was found by the OIG, GAO, industry and even an FAA ARC. That equates to different interpretations being applied to an airline depending on what ASI explained her/his view of the FARs as well as among airlines, on a macro level. This lack of consistency has subjected the Flight Standards organization to substantial criticism, to which senior management agreed.
- The press and the NTSB frequently criticized the FAA that it reacted to accidents; that their revisions to rules made it a tombstone organization. Upon reflection, FAA senior management decided that it needed to be more proactive in its approach. An initiative began to find techniques in which the regulator could “get out in front” of safety risks.
- ICAO and SMS—this UN organization decided that all civil aviation authorities should implement this state-of-the-art safety approach. Its basis is the analysis of meta data bases from shared airline information , extrapolating significant trends, assessing solutions, cooperative/consensus processes and quick implementation of preventative solutions. The cooperation element of SMS, which includes unions, the FAA and management, requires an open, trusting environment.
- The experience with SMS caused the FAA to realize that a punitive/enforcement tactic and a cooperative compliance approach were antithetical; so the Administrator issued a new Compliance Policy.
- The field, some of the same folks empowered by the 2008 Oversight and Investigation Hearing (#1 above), did not appear to agree with this new compliance approach.
- The Office of Chief Counsel reorganized its enforcement structure to assure that the compliance philosophy was understood and followed.
- Duncan suggested that streamlined teams would manage this new comprehensive strategy.
→ Now instead of waiting until major changes to the FARs must be subjected to the languorous NPRM process, the SMS teams can design and implement IMMEDIATE solutions.
→ Finding fault will be replaced with defining consensus.
→ Proactive will reduce the need to be reactive.
→ FAA subject matter experts will be comfortable engaging in dialogue with the certificate holders about the intent of the FAR and then enter into a discussion of the best way to reduce risks. Confrontation and the ticket writing mentality will abate.
→ The need to promulgate an endless list of new requirements will be obviated by the fact that the problem has been solved already.
→ “One size fits all” will be supplanted by the correction which will address your airline’s particular problems.
→ Getting unnecessary advice from OST/OMB will become irrelevant and using statistical probabilities to anticipate the highest risk of your airline will be the rubric to higher safety.
The old Enforcement Program was writing tickets and collecting civil penalties. It was a system which led to considerable contention between the regulator and the regulated.
That was the program for the first years of the FAA. Most of the improvement in aviation safety over that period can be attributed to technology improvement—more precise, reliable radars = better flight paths, incredible gains in avionics = avoiding dangerous weather, more reliable powerplants = fewer forced landings, etc.
The FARs, the rules on which the CBS experts rely, were standards to apply to all, but faced difficulty in being applied to each carrier. The FSDO in location A required more than the ASI at location B. The relationship between the regulator and regulated was contentious; the threat of enforcement inhibited honest discussions about what the rules meant. In response to a sincere question about what § 121.__or 135.__ meant, the FAA representatives were reluctant to express an interpretation. There was little collaboration.
More significantly, the regulations were retrospective- written in response to the last issue. The NPRM process made it difficult to respond to the next identified risk; for working through all the reviews could consume years. Those delays were not caused by the FAA and they hampered the efforts to improve aviation safety.
The new regulatory regime is not pockmarked by civil penalties; it has as milestones immediate advances in risk reduction. The regulator and regulated are in a constant dialogue about improving systems. They are driven by data which points to possible problems before they emerge in an irregularity report. That’s not lax, that is a methodology resulting in enhances procedures, policies and practices designed for Airline __ NOW.
There is strong quantitative data showing that this new approach is working, in contrast to episodic complaints that it is not.
That is not to say that all is perfect at Allegiant. It is safe and is working to improve. It had an older fleet and a contentious relationship with the union. The records which CBS obtained show the problems, but the TV show did not get into the specific solutions which had been and are being implemented.
With no inside knowledge, it is fair to assume that the FAA-Allegiant Event Review Board and associated Safety Management Systems worked on these issues. Likely, each incident was scrutinized to determine what was the root of the problem (not necessarily what FAR was violated). Then, the team (usually union leaders, flight, Ops, maintenance, finance, employment, purchasing, legal, FAA and other representatives) discussed, designed, immediately implemented and reviewed the solution created to limit, if not preclude, reoccurrences. Not 100% successful but driving in the right direction.
There is no wasting of time battling over sanctions; the carrier acknowledges the inadvertent error. Both sides immediately work to reduce the risk.
A discussion of that process was not part of the CBS story, probably because the time needed to explain the comprehensive and preventative nature of this approach would exceed 60 Minutes time allotment. The granularity of the specific solutions for real risks proactively addressed would not be suited for the audience. Probably for the same reasons, the fact, that the FAA’s number of criminal cases appears to have increased, was not included. The real miscreants are being prosecuted.
One of the foundational principles of SMS is that the regulator and the regulated cannot become complacent. Safety Culture demands that everyone involved constantly seeks better ways of assuring safety. Allegiant is committed to improving its performance and the FAA is/will be there to track the carrier’s compliance. The same is true of the relationship between the FAA and all of its participating certificate holders.
ALL OF THAT WENT UNDER THE CBS RADAR.
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