The Elephant in the VDRP picture and its Inhibiting Impact on Aviation Safety

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REPORT: OIG: FAA missing the big picture on airline safety

The Office of Inspector General has issued a thoughtful report about the Voluntary Disclosure Reporting Program. Quite accurately, the IG noted that VDRP is

an important catalyst for improvements in areas such as airline operations, maintenance, and training programs. VDRP provides air carriers the opportunity to voluntarily report and correct areas of non-compliance without civil penalty. The program also provides FAA important safety information that might not otherwise come to its attention.

The above chart lays out the structure of the VDRP process integrated with the ASAP program. The report examined many specific VDRPs and finds that the carriers tend not to define in great detail or analysis what is the root cause and that the FAA really does not make great efforts to assure that the corrective action is effectively implemented. The case studies cited by the IG certainly support these conclusions.

While this report does mention that the VDRP sits at the edge of the FAA enforcement prosecution, it does not mention that industry perceives that the admission of a violation results in many civil penalty actions by the FAA’s invoking of the exceptions. The VDRP program includes exceptions :

To be accepted by the FAA, apparent violations disclosed under the program

must be inadvertent, and, where applicable, must not indicate a lack, or reasonable question of a lack, of qualification of the regulated entity.”

The FAA, in the process of accepting a VDRP, may find that the underlying facts show that the action was not inadvertent and/or that the error shows a lack of qualification. Once the exception is found, the FAA lawyers now have an admission of guilt by the certificate holder with all of the proof included in the document.

That’s the proverbial Elephant in the VDRP process. With the risk that the submission will be turned into blue print for a civil penalty for thousands (six figures and above) of dollars, the VDRP is not written as a safety enhancing, thorough disclosure, but as an enforcement avoiding minimal statement. Thus, many (all) of these papers are carefully crafted by lawyers whose professional duty is to give the FAA as little “confession” as possible. If written without fear of sanction, the text would more likely contribute to the carrier, other airlines (using those certificate holders as an example) and the FAA’s efforts to avoid future repetition of these fact patterns.

This Elephant has two tusks. In addition to the carrier’s tendency to minimize the information to provide a detailed disclosure, the FAA Flight Standards staff is probably unable to follow up on the vague statement to assure the corrective action was completed. At some level they probably want to avoid stirring the pot.

The Elephant is really a distrust of VDRP. The certificate holder does not make a full “confession” with fear that the FAA Enforcement exceptions will be invoked.

The FAA Administrator, who frequently speaks in support of the safety benefits of this and other data-based programs, would create greater trust in VDRP by stating a clear policy—that the exceptions should be used in rare and exceptional circumstances. The result of such a clear expression and direction from the Chief Counsel would be more thorough explanation of the root causes and greater follow up by both the carrier and the FAA.

This issue has been raised before and the reply from the FAA was “send me examples of abuse of the VDRP exception”. The carrier, which decides to blow the whistle on the FAA enforcers, is likely to incur the intense ire of the lawyers and field personnel who are alleged to have abused the VDRP process. “Fingering” the abusers would be semi-suicidal.

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