Torqued: FAA Enforcement Pendulum Swings…Or Does It?
Lately many in the aviation industry are speculating that the FAA’s enforcement pendulum has swung once again with the change in Administration. The more business-sensitive Bush policies, the speculation goes, have been reversed and one of the upshots is more enforcement and higher penalties. Many in the industry are nervous about this and wonder where the agency’s commitment to working together has gone. Is the word “partnership” taboo once again?
Well, from my perspective, it could be true that the enforcement pendulum has swung. Or it might not be. How would anyone know? The FAA’s enforcement policies–and actual cases–remain opaque to the public, industry insiders, oversight agencies and the FAA itself. What remains unclear is what cases are issued and for how much; and how much they are eventually settled for. Sometimes the agency makes a big splash with a huge penalty–a million dollars or more–penalty and then quietly settles for a fraction of that. There’s no press release on those. Maybe those settlements are warranted; maybe the FAA feels enforcement-by-press-release is really more effective and it doesn’t actually have to follow through with adding penalties to the general treasury fund. (Civil penalties, contrary to popular belief, do not fund the FAA’s budget.)
Many within the administration during the Bush years tell me that enforcement and civil penalties against air carriers were pretty much the same then as they are today–after all, the FAA’s enforcement sanction table didn’t change–but that the civil penalty cases were not publicized even though the FAA enforcement handbook requires that press releases be issued for high-dollar cases.
I have told a number of the national media that have asked me about the “increased enforcement” that maybe there was no increase in enforcement, just an increase in the number of press releases. Trying to get a straight story from the FAA is as difficult for them as for many of us in the industry. (Ever sent the FAA an FOIA request–and gotten a response in less than several months? Yes, I know, several months would be fine for those of you who have waited for years and are still waiting.) Trying to understand enforcement trends is near impossible without the underlying data.
Enforcement Action Lags
From conversations with long-time FAA insiders, I suspect part of the problem is that the FAA itself has limited, if any, trend data and cannot analyze its own enforcement data–assuming it wanted to, which is a big assumption. The FAA’s strong suit has never been data analysis–whether in enforcement specifically, or in safety data generally. While it collects a lot of data–including Asap and voluntary disclosure data, not to mention incident and accident reports–its integration and analysis falls woefully short. Nowhere is the lack of analysis more glaring than in enforcement. The FAA relies on a decades-old, mainframe enforcement information system that is difficult to manage and even more difficult to query.
If enforcement is a tool for deterrence against safety violations, wouldn’t you think the FAA would want to know how it’s doing? Isn’t it logical that enforcement priorities follow data that might be revealed from tracking violation trends to enforcement trends? Apparently not. Just a peek at recent cases that have captured headlines shows a common theme: violations that date from years and years ago, that apparently (in most cases) went undiscovered for all those years, followed by huge fines, as though the air carrier or repair station was the only one asleep at the switch. All these large cases always raise the question: where was the FAA while these violations were ongoing? No inspector noticed for all these years that a problem existed?
In February the FAA initiated a civil penalty against Corporate Air, a Part 135 operator in Billings, Mont., for $585,725. The agency alleges the operator failed to conduct required structural inspections dating from 2006. Sounds like the case just squeaked under the five-year statute of limitations!
That the FAA is sitting on civil penalty cases is cause enough for concern. But what’s scarier is when the agency appears to wait years to take revocation action. Just last year it issued an emergency order revoking the repair station certificate of Phoenix Heliparts, a repair station, for violations the FAA knew about in 2008. (The agency has since allowed the repair station to be recertified.) How is that for protecting the public? And what about all those faulty repairs since 2008? Is anyone responsible for following up on them?
Which brings me to another, far more important concern about FAA enforcement: why can reporters find significant safety problems that the FAA either can’t find or refuses to do anything about? Take PBS. It followed its eye-opening look at commuter safety lapses in a segment called “Flying Cheap” with a look at maintenance providers called “Flying Cheaper.” Its reporters found significant, systemic problems with ST Aerospace when apparently the FAA didn’t–or couldn’t. The only major FAA enforcement case I could find against ST Aerospace was a recently initiated case for more than a million dollars for a failure to do pre-employment drug tests–in 2007! Sure, drug testing is important, but the ST Aerospace employees filmed by PBS were talking about potentially far more serious maintenance and safety violations. And why weren’t these drug testing violations discovered sooner? Seems the same paperwork that showed the problem in 2010 existed in 2007–and in all the years in between.
And broadcaster WFAA in Dallas was able to find myriad significant safety problems with a repair station–coincidentally perhaps, also owned by ST Aerospace–that apparently the FAA has still not found. Or maybe it has, and it is not going to take enforcement action or is waiting a few years to do so. o