The below article opens with the following line:
Today attorney Lee Seham of Seham, Seham, Meltz & Petersen in White Plains, New York told eTN: “All whitewashed! Seham is claiming the FAA was dismissing a report made by their own inspectors without any explanation.”
Not surprisingly, that conclusory statement is also used by the publication as its headline. The primary text is a 1,500 word letter from a White Plains labor, employment and immigration attorney/lawyer, Lee Seham to FAA Chief Counsel, Reggie Govan. The May 24, 2016 missive recites Enforcement Investigation Reports (EIR) and Mr. Seham requests that “you provide an explanation as to why the FAA took ‘no action’ with respect to these 19 EIRs.” All of them date from 2015. Mr. Seham concludes
“…the FAA’s inaction and secretiveness have subverted the very IAW maintenance compliance program imposed on AA pursuant to federal court order. In order to address the damage that thereby inflicted on aviation safety, we request for each of the ‘no action’ EIRs: (a) an explanation for the FAA’s NO ACTION determination despite the inspector’s findings, and (b) the disclosure of the full inspector’s report.”
What is characterized as a “whitewash” would be acknowledged by FAA practitioners as a policy transition. It would be accurately described as a major policy change from a legalistic, fault-finding and penalty oriented enforcement approach to what the Administrator and his senior staff has characterized as collaborative, problem-solving and cooperative compliance philosophy.
One would trace this transition to a global policy announcement issued by ICAO in 2001. This innovative, highly effective regulatory discipline is called Safety Management System and has been implemented by the FAA, EASA and other civil aviation authorities. This was not abruptly foisted on industry but through several gradual actions—starting in 2012, further refined in 2013, mandated for all carriers in 2015 and issued further guidance 2016.
The underlying concept of SMS is premised on capturing, analyzing and sharing data to design proactive responses to threats identified by the numbers. Another principle of this advanced safety philosophy is to involve the FAA, the unions and all perspectives of an airline in this process. The results have been documented as positive already.
American was an early adopter of SMS with its initiation of the new mechanism in 2011 and issuing a statement dedicating the airline to this new approach, an announcement made to employees and customers:
AA moved its status through the levels of FAA implementation to the highest standard.
Unions have access to all of the data, review the analyses, participate in the setting of priorities and have direct input into the design of the solutions implemented. All of the above-cited EIRs would ordinarily be subject to SMS review unless the participants concurred that they did not merit further consideration. From an external perspective, it is reasonable to expect that these matters would have been filtered through this collaborative process; one can only suppose since the SMS rules ordinarily limit the distribution of the content and discussions within its borders.
Based on the significant progress made through this new SMS approach, first the Administrator (6/26/2015), then Flight Standards (10/01/2015) and finally the Chief Counsel issued the new Compliance Philosophy. This new set of policies was applied retroactively to all pending matters and prospectively to future initiated matters.
The language and tone of this new effort to achieve this new higher level of safety are different from the past vocabulary of punishment, penalties and preaching. The direction of the new Compliance is shown by these quotes:
All of Mr. Seham’s May 24 letter assumes that the old Enforcement policies, processes and forms are presently effective. The above history should make it clear that his premise is inaccurate. It should not be surprising that there is no evidence of punishment. Under the policy change of 2015, such disclosure is no longer appropriate; the old Enforcement regime has been replaced.
Whitewash applied to 2015 would be anachronistic.