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Congress Seeks Separation of Agency From Airlines

Mon, Jul 21, 2008 — David Evans

Articles

One wonders what it takes for an employee to get fired at the Federal Aviation Administration (FAA). On 15 July, legislation was introduced in Congress that addresses maintenance malfeasance issues raised by FAA whistleblowers at a 3 April 2008 hearing before the House Transportation & Infrastructure Committee, at which an inspection debacle was detailed regarding the possibly too-cozy relationship between the FAA and the airlines it regulates (see Aviation Safety & Security Digest, ‘Committee Vows to Legislate Changes to Strengthen Oversight of Airlines,’ archive).

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“This bill is just a start. It will not address all of the issues, because to do so will require substantial leadership and cultural change within the FAA. However, it is meant to serve notice upon FAA that we will not continue to tolerate the lax environment that has been allowed to develop over the past few years.”

Rep. James Oberstar (D-MN) Chairman, Transportation & Infrastructure Committee 15 July 2008

A bipartisan group of lawmakers, led by Committee Chairman James Oberstar (D-MN), introduced legislation that would force changes on the FAA that the agency has actively resisted.

“The relationship between the airlines must ensure that safety mandates are met,” Oberstar said. “While this can be a cooperative process, the airlines cannot be seen as clients. The flying public is who the FAA works for and this bill would strongly reinforce that emphasis.”

The bill, numbered H.R. 6493 and titled the “Aviation Safety Enhancement Act of 2008” promises to put into law some practices to improve oversight that the FAA has opposed.

For example, the Department of Transportation Inspector General (DOT/IG) recommended, among other things, that inspectors by rotated periodically to avoid getting too close to the airlines they regulate.

The DOT/IG’s recommendations – and the subsequent resistance by the FAA – come after FAA management was sharply criticized for not taking strong action after the disclosures of collusion at the Dallas, TX, certificate management office (CMO) responsible for oversight of Southwest Airlines and American Airlines. The revelations at the 3 April committee hearing raised serious questions about the professed ignorance of the local situation at FAA national headquarters.

“If I had my way, there would be major changes in personnel at the FAA,” said Rep. Jerry Costello (D-IL), when the bill was introduced. In other words, in addition to the bill’s strengthened checks and balances, he would fire some senior FAA officials. One such individual is thought to be Nicholas Sabatini, the FAA’s associate administrator for aviation safety, who professed ignorance of the cozy machinations at the southwest region CMO.

Following the committee’s 3 April hearing, the DOT/IG continued its review of FAA oversight and issued a report on 30 June 2008. That report’s summary is a devastating indictment of the FAA:

“(We) found weaknesses in FAA’s (1) processes for conducting internal reviews and ensuring corrective actions and (2) policies for protecting employees who report critical safety issues.

“The breakdown in FAA’s air carrier oversight occurred because FAA did not implement and enforce effective management controls over its air carrier oversight program … Further, because these control deficiencies exist across the ATOS [Air Transport Oversight System] and voluntary disclosure programs, FAA cannot have assurance that these problems are unique to SWA [Southwest Airlines}.”

Indeed, similar problems were documented at American Airlines, for which oversight is provided by the same CMO (see Aviation Safety & Security Digest, ‘Agency Accuses Airline of Sloppy Maintenance While Sidestepping Its Own Safety Oversight Shortcomings,’ archive).

As a result of its investigative findings, the DOT/IG issued a number of recommendations to the FAA, of which the following are the most prominent:

  • Develop procedures for periodically rotating supervisory inspectors to ensure reliable and effective air carrier oversight.

  • Implement post-employment guidance that includes a “cooling-off” period (e.g., 2 years) that prohibits an FAA inspector hired at an air carrier he or she previously inspected from acting in any type of liaison capacity between FAA and the carrier (Southwest had once hired a senior FAA inspector the day after he retired from the agency).

  • Ensure its air carrier oversight mission clearly identifies the flying public as the primary stakeholder and beneficiary of its inspection efforts.

  • Create a national review team to conduct periodic quality assurance reviews of FAA’s oversight of air carriers to ensure that (a) appropriate processes and procedures are being applied consistently and (b) pertinent policies, laws and regulations are being followed.

  • Establish an independent organization (that reports directly to the FAA Administrator or Deputy Administrator) to investigate safety issues identified by FAA employee.

The FAA disagreed with key recommendations. For example, it viewed the periodic rotation of supervisors as “not very practical” and noted that it would cost $27 million a year to rotate Principal Inspectors and Managers. The FAA also disagreed with establishing an independent organization to handle whistleblowers’ complaints.

In unusually blunt language, the DOT/IG complained, “FAA’s response is unacceptable … the actions taken do not demonstrate a commitment on FAA’s part to address the root causes of the issues we identified.”

The impasse explains why Costello thought “major changes” in personnel at FAA headquarters were necessary.

As Oberstar said while introducing the “Aviation Safety Enhancement Act of 2008,” the FAA’s response was lackluster:

“On employee complaints, the FAA’s response has been to implement a Safety Issues Report System (SIRS). This process largely duplicates existing hot-lines and does not provide for an independent review outside of the FAA’s Aviation Safety Organization, which has a long record of not responding adequately to complaints. …

“The FAA management responsible for safety appears to face an inherent conflict-of-interest when faced with charges of failure in regulatory oversight. That is why this bill creates an independent Aviation Safety Whistleblower Investigation Office [ASWIO] within the FAA, but independent of the Aviation Safety Organization. The director of the new office would be charged with receiving safety complaints and information submitted by both FAA employees and employees of certificated entities, investigating them, and then recommending appropriate actions to the FAA.”

In addition to creating the ASWIO, the bill:

  • Calls for the FAA to amend its documents to clarify that the airlines are not customers, that the traveling public is the agency’s only “customer,” and that the airlines cannot request or demand that certain FAA inspectors conduct or not conduct inspections.
  • Mandates that flight standards inspectors must undergo a two-year “cooling off” period (as called for by the DOT/IG) before going to work for an airline subject to FAA safety inspection.

  • Prohibits inspectors from overseeing safety issues at any one airline for more than five years.

  • Requires the FAA must conduct monthly reviews of its computerized safety reporting database.

In his aviation policy blog, Evan Sparks notes that the legislation is not perfect but makes important strides in the right direction: writes,

“At least one of the mandates is a slam-dunk: no airline should be able to lean on FAA managers to keep an inspector off a job or get an inspector favorable to them.

“The biggest problem with this legislation is that it will force the FAA to become even more institutionally schizophrenic than it already is. The FAA’s mandate includes regulation of airlines and service provision for those same airline. It is hard for an entity to balance those two roles. If the FAA rolls back its ‘customer service initiative,’ that may harm its ability to work with airlines on air traffic control, an area in which airlines actually are its ‘customers.’ Through the Air Traffic Organization, the FAA provided air navigation services to airlines and other aircraft operators.”

He also noted the implications this bill may have for the FAA’s future:

“By spotlighting this institutional schizophrenia, this legislation subtly makes the case for splitting up the FAA into two bodies: one regulatory, the other a service provider. It might even be more cost-effective and customer-friendly to privatize or commercialize air traffic control services.

“In short, H.R. 6493 is not a panacea, but it offers a few immediate benefits while exposing the need for more systemic reform.”

Sparks may have a good point. And his argument is valid irrespective of whether H.R. 6493 is enacted. The bills sponsors acknowledge that this appears unlikely, as there are only a few months left on the House’s legislative calendar. Primarily, they want the bill to be “a shot across FAA’s bow,” as it was characterized by Rep. John Mica (R-FL), the committee’s ranking minority member.

But despite this strong signal from legislators about their discontent, it appears at this point that the FAA has weathered the storm of controversy over its mismanagement. The bill is not likely to gain passage this year, and FAA senior officials will remain safely ensconced in their jobs.

(For the House press conference and extensive comments from Rep. Oberstar, see http://transportation.house.gov/News/PRArticle.aspx?NewsID=707. For exact language of H.R. 6493, see http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=fih6493h.txt.pdf. For the DOT/IG’s 30 June 2008 report, see www.oig.gov/item.jsp?id=2324)


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