FAA’S SLOW REACTION TO BOEING’S FAILURE TO MEET A SAFETY DEADLINE CAUSES RAISED EYEBROWS

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No doubt about it, the manufacturers bear the same regulatory duties as do the airlines, repair stations, airmen and AMT. Boeing is subject to the same civil penalties and actions as the other certificate holders.

Equally important, the FAA bears a very high duty to insure that the sole goal behind its enforcement program is to address failures by the certificate holders as soon as is practicable after the problem comes to the attention of the safety regulators. Any variances from those expectations create doubts. The Boeing case, described in the attached FAA press release, includes subtle abnormalities which raises lots of questions.

First, assuming the allegations made by the FAA are correct, then Boeing’s inability to meet the deadlines appears to raise legitimate safety concerns. Boeing has yet to be heard why it did not produce the information and their answer must be read before any final conclusions are made.

The FAA’s actions, announced by both the Secretary of Transportation (a Member of the Cabinet) and the FAA Administrator (the person statutorily charged with the enforcement of the statute and regulations at issue), seem unusual. The alleged violation occurred on December 28, 2010.The letter indicates that the company provided the requisite information on October 14, 2011. A regulator seeking to limit safety violations should ordinarily take action soon after a violation comes to its attention. Issuing an enforcement notice at the time of the first failure would have shown that the FAA was convinced that the ongoing violation was serious and should cease immediately. The FAA press release documents a significant gap between the agency’s notice of the problem and the agency’s formal notice of a violation.

A third party looking at these facts might reasonably ask the following questions:

  1. Why would FAA not issue its Letter indicating a violation on the date of Boeing’s failure to issue service instructions back in 2010?  By waiting months to cite the manufacturer, the FAA press release is able to post a proposed penalty of $13,570,000 instead of a much smaller number. A sanction of almost $14 million gets a lot more headlines than an $11,000 fine.
  2. The period of Boeing’s alleged failure stopped last October. Why not issue the damning letter way back then and make the message clear that such tardiness matters to the FAA by swiftly reacting to Boeing’s slowness?

The FAA is expected to be aggressive when it comes to safety. Its actions should reflect the urgency of its mission and its enforcement actions should mirror the importance of timeliness, or the lack thereof, of the certificate holders. Delays of the sort in the Boeing case, if nothing else, cause raised eyebrows. There may be reasonable explanations for the delay in initiating the sanction and in announcing the action against Boeing. In the absence of any statement describing why there are such significant gaps in the FAA’s reactions, posing pointed questions is not unreasonable.

Untimely action by the FAA has created the opportunity for serious consideration about whether advocating safety is its sole priority.

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