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FAA Proposes $150,000 Civil Penalty Against Metropolitan Aviation

Paperwork is the basis

Compliance Philosophy would seem to apply

Would it be better if FAA was more transparent

From the outside of the FAA, it appears that heavy criticism of the FAA’s Compliance/SMS philosophy, as evidenced by these posts:

• UNDER THE CBS RADAR? Compliance v. Enforcement
• Individual Members of Congress seek a negative answer by asking OIG for “the whole story” of the FAA maintenance oversight- SMS and Compliance
• Senator Blumenthal’s tough questions miss the point

has resulted in a wave of FAA enforcement actions like these:

• Individual Members of Congress seek a negative answer by asking OIG for “the whole story” of the FAA maintenance oversight- SMS and Compliance
• DAR clearly does wrong, but paperwork care/intent is IMPORTANT
• FAA $3.3 M civil penalty catalyst for warning
• Seven figure civil penalty is not the #1 impact of the FAA’s bad news about the USVI Airports
• HORRIBLE CRIMINAL CASE WARNS CONSEQUENCES FOR BAD PAPERWORK
• Where is the Emergency in this FAA Action against Island Air?
• Increase in FAA’s Criminal Docket?
• There are serious consequences to violating the FARs
• Repair Stations: is it the Ides of March or is the FAA in the midst of a Part 145 sweep?
• FAA bares its Enforcement Teeth in AeroBearings Revocation Order
• Compliance Policy would benefit from more transparency in Enforcement Cases

All of that is prelude to a question. The FAA Compliance Philosophy makes it clear that when the violation is unintentional, the “FAA will not use enforcement as the first tool in the toolbox.”  Here is a further explanation of the new approach:

“The Compliance Philosophy represents a focus on using – where appropriate – non-enforcement methods, or “Compliance Action.” Compliance Action is a new term to describe the FAA’s non-enforcement methods for correcting unintentional deviations or noncompliance that arise from factors such as flawed systems and procedures, simple mistakes, lack of understanding, or diminished skills.”

The FAA announcement does not indicate that Metropolitan’s actions were intentional; at best one can infer that the company did not complete the paperwork to document that the Dassault Falcon 50 jet’s primary flight display.

Historically, the FAA’s enforcement documents have not been an exemplar of fact pleading (see Sen. Inhofe’s Pilot Bill  of Rights I and II); so, it is hard to discern why the Compliance Philosophy was not applied. Questions linger for those not privy to the facts as to how to interpret the new policy’s application:

 

1. Did Metropolitan evidence “behavior indicating an unwillingness or inability to comply, or evidence that, for example, supports an intentional deviation, reckless or criminal behavior, or other significant safety risk”?
   1. If so, what did it do?
   2. Was the person who made the repairs unqualified?
2. One of the premises of the Compliance Philosophy is that the carrier is participating in SMS, is sharing information, is cooperating, etc. Did Metropolitan fall outside the bounds of a Compliance Action?
3. Some other possible reason for not applying the kinder, gentler approach?

 

The absence of an answer to the what question (1) may make good policy sense. By explaining what Metropolitan did to run afoul, the FAA may be concerned that others might intentionally avoid that “bad” marker while otherwise having violated an FAR.

If (2) is the reason why Metropolitan was violated, disclosing that likely would encourage others, for example airports, to initiate SMS earlier. That would be good.

Industry is interested in making the SMS/Compliance Philosophy work. The recent spate of FAA Enforcement action without any explanation of WHY Compliance did not apply adds some opaqueness in a time of purported transparency. CONFUSION is not good for Compliance.

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