On the FAA Administrator Huerta, FAA Order 8000.373, on June 26, 2015, a well-written document which shifted the FAA’s enforcement approach from punitive to a cooperative approach which emphasizes collaborative problem-solving. Here are two of the paragraphs which explain the goals of the new compliance philosophy:
d. When deviations from regulatory standards do occur, the FAA’s goal is to use the most effective means to return an individual or entity that holds an FAA certificate, approval, authorization, permit or license to full compliance and to prevent recurrence.
e. 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 or training programs for regulated entities, which are documented and verified to ensure effectiveness. However, reluctance or failure in adopting these methods to remediate deviations or instances of repeated deviations might result in enforcement. [emphasis added]
This was a sufficiently important announcement that the Administrator called it “another first in our safety evolution.”
The Flight Standards organization issued on September 8, 2015 its own order, Notice 8900.373. That excellent document is a far more detailed explanation to the field of the rationale behind this change, the new tools/skills needed to adopt this new approach and its basis within the FAA’s central safety approach for the future—SMS.
All of these declarations make for a comprehensive safety system that has already created more preventative improvements and international commendations. SMS relies on voluntary submission of data by the certificate holders and then actual collaboration between the regulator and the regulated.
This is a major, perhaps even radical, change in how and what the FAA field aviation safety inspectors have done for decades. Clearly the adoption will require a significant transformation of the attitudes of the staff where the “rubber meets the road.” There have been doubts expressed about if the unionized employees will follow the new directions.
The FAA Chief Counsel withdrew the authority of his Regional Counsels and centralized the legal analysis/evaluation review in his Washington office. This organizational change will establish a sieve which will be able to assure that the field will follow Order 8000.373. Though the field inspectors and regional attorneys may not like the new policy, this centralized team will assure that the future “compliance” efforts meet the Administrator’s new edict.
There appear to be some facts which confirm those suspicions—the below list of 13 civil penalties which have been issued between September 1 and November 10, 2015 for a total of $5,010,255 in civil penalties. No mention of “root cause analysis, training, education or other improvements” in any of the Press Releases issued by Mr. Huerta’s communications staff, although some are not issued in Washington.
Does this “trend” constitute a “failure” of the new compliance philosophy? Here are a few comments and questions to assess how implementation may or may not be going (noted by +s, —s and o’s to signify positive, negative and neutral on Order 8000.373):
+ These cases were being processed before the new Orders were issued.
+ None of the field personnel had been trained in the new techniques.
+ The HDQ-centric legal review process was not in place before these cases received final reviews.
— The cases appear to cover a wide variety of subjects (airports [snow removal], Haz Mat, drones [air traffic], drug & alcohol testing, operations, maintenance, operating without authority) suggesting that any resistance is not confined to a single discipline.
o Flight Standards was an identified area wed to old practices.
— Airports do not have a tradition of heavy enforcement.
o Snow removal, the substance of the two civil penalties, may qualify as an issue meriting a highly visible action.
o Drone enforcement is an area needing high visibility and the $1.9M penalty may have reflected that policy emphasis.
+ For certain, Order 8000.373 was not issued at the time these investigations were started and so there were no real opportunities for collaboration.
+ The violations were of the type which the order was not intended to cover.
+ A theoretical predicate to the application of the new compliance philosophy is the existence (in general or specifically?) of SMS.
o Only four of these cases involve air carriers; they should have had SMS in place.
o Two were airports and SMS has not yet been mandated for Part 139 certificate holders.
o That is also true for the Part 145 certificate holders.
o One of the respondents did not have the necessary FAA authority; so it could not have that link to the FAA.
o Another was a ground handling company for which no SMS can be applied, yet.
In summary, there is not any real evidence of outright rebellion among the FAA ranks. However, those regulated by Mr. Huerta’s team have learned not to rely primarily on words, but they believe that actions speak louder than words. Anyone who subscribes to the FAA press release service would see 13 cases and $5M in penalties. Without a detailed analysis of those actions (like the above), the average certificate holder may not yet believe that the new compliance policy is really being followed.
The Administrator’s press staff might be well advised to note why these actions do not violate his Order 8000.373. Such added information might reduce the skepticism of the certificate holders and coincidentally of the naysayers found out there in FSDOs, ADOs, etc.
- Press Release – FAA Proposes $509,180 Civil Penalty Against Martinaire Aviation
- Press Release – FAA Proposes $169,500 Civil Penalty Against Sun Air Express
- Press Release – FAA Proposes $240,500 Civil Penalty Against Helicopter Transport Services, LLC
- Press Release – FAA Proposes $200,000 Civil Penalty Against Detroit’s Wayne County Airport Authority
- Press Release – FAA Proposes $68,000 Civil Penalty Against Unical Aviation
- Press Release – FAA Proposes $1.9 Million Civil Penalty Against SkyPan International for Allegedly Unauthorized Unmanned Aircraft Operations
- Press Release – FAA Proposes $114,975 Civil Penalty Against Sun Country Airlines
- Press Release – FAA Proposes $735,000 in Civil Penalties Against the City of Cleveland
- Press Release – FAA Proposes $154,000 Civil Penalty against G&B Investment Management, Inc.; N3344D Partners, LLC; Two Five Delta, LLC; and Gene Curtis
- Press Release – FAA Proposes $173.500 Civil Penalty Against Servisair LLC
- Press Release – FAA Proposes $174,600 Civil Penalty Against Mesa Airlines
- Press Release – FAA Proposes $360,000 Civil Penalty Against Empire Airlines
- Press Release – FAA Proposes $211,000 Civil Penalty Against Dukes Aerospace Inc.