FAA Administrator issues new Order on Enforcement Policy; will Field follow it?

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It is not common for the Administrator to issue a National Policy on Compliance. Why did he do it and what is its significance?

The FAA is a large organization and in order to manage all of its personnel located throughout the US it uses a number of techniques to manage them. One of the most difficult chains of commands is the Aviation Safety organization with many field inspectors, regional offices and a headquarters staff—all of whom are either authorized to establish policy or more commonly “empowered” to interpret policy.

The intention of the library of AVS Handbooks is to provide detailed, expert guidance to the FSDO offices where the FARs are applied to certificate holders. Those tomes are written with great care by an extensive, knowledgeable staff in Washington and at great expense disseminated by classes on the Handbooks and by the delivery of these volumes to the field.

As documented by many OIG, GAO, industry and even an FAA ARC have found that there are dramatic inconsistencies in the FAA’s application of its standards and policies. Some of these deviations can be attributed to the message sent by a Congressional hearing in 2008; the result of this HR oversight was that a manager was fired and several FAA executives’ careers were damaged.

Whether intended or not, this Congressional reaction (no bill or resolution, just outrage expressed by the Members plus the press coverage) weakened the ability of FAA managers to impart their expertise to their subordinates. Even FAA Orders do not result in field adherence to policy. Now all an inspector need do, when disagreeing with his/her supervisor, is to file a “whistleblower” complaint. That request for protection is sent to the Office of Audit and Evaluation, the director of which is the same individual who organized the 2008 hearing. Once the paper is in process, the staff person can ignore the guidance of her/his supervisor. The end result is that the AVS chain of command is effectively emasculated.

Several years ago, the head of the Flight Standards organization, John Allen, gave directions in 2012 to the field best summarized by this report:

John told the Aircraft Charter Safety Foundation’s annual Air Charter Safety Symposium that he is “trying to change a culture within the Flight Standards Service.” Specifically, he intimated that the first tool of his 1,500 inspectors is not to open his ticket book and begin to violate a “problem.”

John succinctly summarized the difficult balancing position that he is advocating while “[w]e are not friends,” but there should be a more cooperative approach to resolving minor problems.

Great initiative, John, and hopefully your field organization will adopt this new approach.

That policy directive has also been promulgated by the Associate Administrator for Aviation Safety, Peggy Gilligan, her Deputy John Hickey and the Director of the Flight Standards organization, John Duncan. The field compliance with this enforcement policy is shown by these two charts:

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More recent data and actions continue to demonstrate the field’s reluctance to follow directions from Headquarters.

The senior AVS staff is aware of the Congressional budget and the unlikelihood that the FAA will receive authorizations and/or appropriations to add staff. They also recognize that the same legislators expect that the FAA maintain their vigilance over the certificates which have been issued. The executives came to the conclusion that the old surveillance methods are not feasible. Contemporaneously, ICAO created the new regulatory discipline called Safety Management System. Its primary justification is that its date driven analyses direct the field inspectors to specific concerns and do so on a timeline which facilitates proactive solutions.

This new approach, as opposed to the old reactive “tombstone” technique, requires the staff to analyze data and then to focus on designing solutions WITH the certificate holder. The previous enforcement would have used the data to begin writing up a ticket for the carrier. SMS instead emphasizes a positive, preventative approach in which the regulator and regulated try to design mechanisms intended to prevent the reoccurrence of the problem. This new gospel has been extolled by the FAA senior management and the field response has not been positive. They don’t like statistics; they do like writing up civil penalties.

A recent situation in which United’s SMS process identified problems with its pilots’ competence and in which the company took proactive steps. The local FAA followed the old path and initiated heightened surveillance in an effort to find violations, rather than solutions. This cognitive dissonance between the SMS policy and local practices is an example of the resistance of the field to HDQ policies.

Thus, FAA Order 8300, on June 26, 2015,  was issued by the ultimate authority within the FAA to all employees. Its message was to minimize the old enforcement ethic and to maximize the power of SMS. Here are a few critical quotes from that Order:

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And here is the punch line:

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[Coincidentally, but totally unrelated, the 2012 Pilots Bill of Rights and possibly the yet-to-be-enacted PBOR2, place (or will place) greater burdens of proof on the FAA; that additional work may diminish the FAA’s legal enforcement activity independently.]

The Order from Administrator Huerta should cause the field to change their behaviors and to follow this national policy. It will be interested to see if the notices of civil penalties and other proposed sanctions reduce. If the field continues to resist, SMS may be at risk.

 

NATIONAL POLICY: FEDERAL AVIATION ADMINISTRATION COMPLIANCE POLICY

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