Need to educate Critics of Compliance Philosophy
Support from several sources for SMS enhancement of Safety
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This headline contains a message which aviation professionals would be well to repeat and, in particular, share with the media. As Mr. Duncan says, compliance philosophy is IMPROVING SAFETY.The data strongly suggests that SMS/cooperation/compliance/data-sharing/ ASIAS/VDRP/FOQA etc. have contributed to a proactive, preventative safety environment.
Generations of aviation safety inspectors earned their stripes by combing through records, all from the past, and by writing up the reports which led to enforcement actions. That was a time of retroactive focus and finding fault. There was a sense of satisfaction within the FAA corps for “winning” and resentment among the carrier community for “losing”. The deterrent effect of a civil penalty was not appreciable.
In contrast, the new regulatory regime centers on catching issues before they become a headline. What critics call “compromising the process” involves the regulator and the regulated working together, or cooperating, to improve systems, procedures, training and policies. At the end of this process, both the FAA and the carrier have designed, invested in, a higher level of safety.
Below are several analyses of the new Compliance/Cooperation philosophy and its efficacy (John Duncan’s thoughts are the last of three articles):
According to AOPA’s Legal Services Plan website, the overall impression is that the FAA’s Compliance Philosophy is working as intended and has been a benefit to airmen. Situations that might have previously resulted in an Enforcement Action, such as a certificate action or civil penalty, are being resolved through a more productive Compliance Action consisting of education, training, or counseling. Additionally, once a Compliance Action is successfully resolved, it does not go on the airman’s accident/incident/enforcement database record.
2016 was the first full year of the Compliance Philosophy, and according to an AOPA chart, Legal Enforcement Actions have dropped by more than 50 percent, and Administrative Actions have dropped by 70 percent. This implies that many airmen have been deemed to be returned to full compliance through a Compliance Action, who in the past would have been subject to certificate action or imposition of a civil penalty.
Positive changes under the Compliance Philosophy notwithstanding, AOPA makes a point to note that, “It’s always good advice to consult with an aviation attorney before engaging with the FAA. Keep in mind that obtaining legal counsel after a possible pilot deviation does not preclude a Compliance Action.”
Addressing Issues of Non-Compliance
The FAA establishes regulatory standards to ensure safe operations in the National Airspace System (NAS). Compliance is mandatory. However, we must recognize there are many ways for certificate, approval, authorization, license, or permit holders to comply with regulations and operate safety. The consistent result should always be effectively managed risk.
The FAA’s oversight uses an aggressive and engaged risk-based approach that focuses on solutions and outcomes. This approach is meant to promote collaboration, but the FAA will not compromise its oversight responsibilities.
This new philosophy allows for a more robust set of oversight processes that require the FAA and certificate, approval, authorization, license or permit holders to seek and implement solutions to identified deviations and more proactively address risk. This view of compliance stresses a problem-solving approach where enhancement of the safety performance on the part of certificate, approval, authorization, license or permit holders is the goal.
Enforcement is one tool we can use; however, it is often not the most effective tool in assuring safety.
When certificate, approval, authorization, license or permit holders deviate from regulatory standards our goal is to use the most effective means to restore full compliance and to prevent recurrence. You will need to evaluate the facts and use the most appropriate tool to achieve compliance.
The table below outlines ways to address various types of deviations.
Type of Deviation Means to Address the Deviation
Deviations due to:
Lack of understanding
For airmen: training, education, or counseling.
For regulated entities: appropriate improvements to systems, procedures, or training programs.
The above corrections should be documented and verified to ensure effectiveness.
Note that reluctance or failure in adopting these methods to remediate deviations or instances of repeated deviations may result in enforcement.
Deviations that are:
Present an otherwise unacceptable safety risk, such as patterns of negative behavior or performance, for example:
Failure to adopt methods to remediate deviations
Instances of repeated deviations
Note that these types of deviations pose the highest risk to safe operation in the NAS.
Matters involving competence or qualification of certificate, license, or permit holders.
Appropriate remedial measures, which might include:
Violations involving law enforcement-related (criminal) activities.
Enforcement action may be taken.
In addition, legal enforcement will be taken when required by law.
BY DR. BILL JOHNSON
Was FAA Really Watching Me?
For the first decade or two of my aviation career I saw the Federal Aviation Administration as the aviation police. They tested me and issued my flight and maintenance certificates. The FAA would conduct ramp check or review the approved 141 or 147 curricula (of which I was a student and later an instructor). Quite frankly, I did not see the FAA inspector as a partner who could help me to ensure safety. In fact, as a pilot/mechanic/Part 147 instructor, I never really saw the FAA but I perceived that they were “watching.” They were watching. Through rules and guidance material they oversaw all of my actions.
The FAA aviation rules and guidance helped to ensure that my training met a safety standard. They were intended to guide me to maintain a level of currency/proficiency as I flew/maintained aircraft. Most of the time, it was straightforward to comply with the rules. The implication has always seemed to be that if I was legal, then I was safe. However, I came to understand that minimum compliance with the rules was not a guarantee of the highest level of safety. The difference between a certificate holder and a good certificate holder is the ability to find ways to go beyond the rules to achieve continuing safety and operational efficiency. That’s what safety management systems (SMS) are about. The enhanced push toward safety management is important in a transition from being the “watcher” to becoming a partner with organizations in transforming the nature of compliance and safety.
Throughout my career, it became clear that unintentional noncompliance with a regulation, while undesirable, did not necessarily breach acceptable levels of safety. Regardless, if such noncompliance was discovered, it would result in a Letter of Investigation, with likely regulatory action. Plainly, FAA would “bust” you. Fortunately, FAA discovery of noncompliance never happened to me. But, any honest certificate holder would admit that they probably forgot to adhere to a regulation at some time in their history. The good news is, the new FAA approach does not include “busting” someone as the first course of action. This new approach is called the “compliance philosophy.” It represents another important second step for FAA in transforming the nature of compliance and safety.
4. FAA Compliance Philosophy and SMS
The current FAA “Compliance Philosophy (see Order 8000.373, June, ‘15) is straightforward. An excerpt from that order states:
“…. When deviations from regulatory standards do occur, the FAA’s goal is to use the most effective means to return an individual or entity …. to full compliance and to prevent recurrence.
… FAA recognizes that some deviations arise from factors such as flawed procedures, simple mistakes, lack of understanding, or diminished skills. The agency believes that deviations of this nature can most effectively be corrected through root cause analysis and training, education or other appropriate improvements to procedures……”
When Administrator Huerta briefed this concept to the FAA workforce in July 2015, he was very serious about the concept, stressing that the traditional enforcement action must not be the first choice to insure regulatory compliance. He stipulated that we are not ceasing enforcement action, rather attempting to apply it to the extreme cases of noncompliance.
At the ground level, the guidance material for your FAA Aviation Safety Inspectors is located in Order 8900.323. Refer to it and see how your Aviation Safety Inspector is guided to apply the new Compliance Philosophy. It also stipulates how serious FAA management is about supporting the inspectors who embrace this new approach to compliance. Sample guidance states:
“… the Aircraft Flight Standards approach to oversight and compliance is evolving to stress an engaged, solution-oriented, outcomes-based approach. The goal is to identify deviations from standards and correct them as effectively, quickly, and efficiently as possible … This approach will more effectively address inadvertent deviations and conserve FAA enforcement for intentional, reckless, criminal, and uncooperative behavior … Accordingly, AFS leaders, managers, and supervisors will support inspectors when they use critical thinking to exercise sound professional judgment and take actions in accordance with this notice.”
This new FAA attitude will take some time to evolve. The good news is, this is an approach that certificate holders and inspectors have clamored for, as evidenced by the hundreds of comments throughout our 25 years of conducting human factors courses. The next important step lies with certificate holders and inspectors to strive for new and improved methods for open communication and joint efforts to solve challenges. This is not an overnight process merely driven by an order; the compliance philosophy shall evolve.
by Kerry Lynch
– November 16, 2018, 11:50 AM
Results from the FAA’s Compliance Philosophy approach toward enforcement have been “extremely positive,” said a senior agency official, but he warned that the aviation community must constantly educate critics on the benefits of the initiative. Since the initiative began in 2015, the FAA has worked with industry on more than 15,000 compliance actions, estimated John Duncan, FAA deputy associate administrator for aviation safety, during NATA’s recent 2018 Aviation Leadership Conference.
These are actions designed to correct unintentional non-compliance events or issues without using enforcement. “Those 15,000 compliance actions involved risks that were identified and mitigated,” he said. “There are 15,000 things that have made the NAS [National Airspace System] safer. That’s an extremely positive outcome.”
However, Duncan added that the non-punitive approach of the Compliance Philosophy initiative is “counter-intuitive,” and said he has spent hours discussing this with people outside of the aviation community. “There’s a disconnect there” in understanding the approach, he said, pointing to the negative publicity it drew during an April airing of the television news magazine 60 Minutes. This brought questioning from Congress.
As a new Congress arrives in January, Duncan added he expects that this education process must continue. “We need your support,” he told the audience at the NATA conference. “We need all of you to talk about the compliance program and how it works because it is not easily understood.”
Compliance Philosophy is among numerous efforts the agency is undertaking to collaborate more closely and iron out long-standing issues. The agency’s Flight Standards and Aircraft Certification Services recently reorganized in part to take a more consistent, centralized, yet flexible approach to oversight.
Duncan noted the fragmented approach that had been in place, leading to inconsistent interpretations of the regulations. In Flight Standards, the restructuring was designed to “facilitate a culture change,” he said.
The eight regions had operated more independently, which would result in different approaches and interpretations of regulations, he said. Now it is organized in four groups that are function oriented, providing a more centralized focus.
He acknowledged that in the past, a change in principal operations inspector (POI) could upend an organization if the new POI were to disallow something that a previous POI had approved. “I hope that’s all gone,” he said, encouraging operators who encounter such a situation to start conversations with their POIs to see if there are less disruptive ways to transition to a new interpretation. Operators could also ask the POI to bring in an additional agency official to further discuss such an issue or seek a second interpretation.
He also stressed that policy is not set in stone. There may be exemptions or instances that could spur the agency to re-evaluate a policy, he said, and encouraged operators to turn to the agency’s Regulatory Consistency Communication Board (RCCB), when policy questions arise. The RCCB also has had positive results, he said, but expressed a belief it could be used more.
He likened the situation to marriage counseling, adding, “This about people and about getting along.”
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