I started out writing this article for small operators: the Part 135 air taxis; the Part 125 operators that carry cargo for a few companies or passengers for several sports teams; and the small repair stations—whether certified or not—that provide maintenance for certificate holders large and small. I meet many of these operators on my travels, and most don’t have the time or staff to keep up with all the changes that go on at FAA headquarters. Many seem to want to talk after they’ve gotten a visit or a letter from an FAA inspector—or worse, a legal notice from an FAA attorney—and are concerned that enforcement action is going to ruin them. The cost of hiring their own attorney to fight charges—even when they are sure they have done nothing wrong—can be a huge expense. But you really can’t go it alone when it comes to legal enforcement. If you’re facing legal sanctions you must have an attorney, preferably one with specific experience fighting the FAA.
But what many of the operators I speak with are not aware of is that they can take steps to insulate themselves from enforcement action and make their operations safer and likely more time and cost effective. Sound too good to be true? Not if you understand the FAA’s compliance philosophy and, among other things, tap the knowledge of your employees to find the problems in your operation and take steps to correct them. The FAA's Aviation Safety Action Program (ASAP) is the best way to get voluntary employee participation in reporting safety issues. While its protections don’t apply to every case—most notably intentional or criminal acts—its purpose is to encourage employees voluntarily to report “safety information that may be critical to identifying potential precursors to accidents.” It encourages employees to share information by protecting them from FAA enforcement action and company disciplinary action. (It’s important to keep feeding safety information to NASA through the Aviation Safety Reporting System—known to many as “NASA immunity”—but the benefits to individuals are less than through ASAP. NASA immunity prevents the FAA from imposing a sanction in certain cases but you still end up with a violation on your record.)
I started out thinking small operators are the least likely to be aware of the Aviation Safety Action Program and how that could be used—usually in conjunction with a safety management program—to learn about safety problems or violations in your operation before they become tragic accidents or FAA enforcement actions. But when I looked at the list of airlines, repair stations and others that have ASAP, I saw that many have gaps in their employee coverage. For example, even some large airlines have ASAP for pilots but not their maintenance technicians or flight attendants or ramp workers.
Enforcement Program Changes
So how does ASAP protect a company from FAA enforcement? Most of the people I talk with are unfamiliar with changes the FAA made to its compliance and enforcement program about a year-and-a-half ago that they could be taking advantage of. So I thought it would be worth going over those changes and how even the smallest operators can improve their operations and earn an enforcement pass from the FAA.
In 2015 the FAA announced a new compliance philosophy that is intended to reward companies and other certificate holders that find and correct safety problems by limiting or eliminating punitive enforcement actions. The FAA recognized that the threat of enforcement sanctions limits the willingness of certificate holders—both individuals and organizations—to come forward and share information with it. The agency also recognized that for safety information to be shared more freely, it needed to adopt a “just culture,” one that has both an expectation of, and an appreciation for, self-disclosure of errors. A “just culture” allows for due consideration of honest mistakes, especially in a complex system like the National Airspace System (NAS),” according to the FAA.
With its enforcement philosophy, the FAA was finally aligning itself with the safety management principles that many other countries—Canada and the United Kingdom among them—have supported for many years. There was little hope of SMS working if the FAA’s enforcement actions didn’t support the underlying principles of finding and correcting safety lapses and appropriately communicating the lessons learned. While the new SMS regulations—found in Part 5 of the Federal Aviation Regulations—currently apply only to Part 121 air carriers, it’s likely they will eventually apply to other certified entities. In any event, safety management systems have benefits that all certified and non-certified entities should consider adopting. In my experience working with entities adopting SMS, the biggest benefit for the bean counters in charge of many corporate departments is that SMS helps find and correct problems that cost money. For those of us who care about improving safety, it also has that benefit.
Many smaller certificate holders are concerned about the costs of adopting an SMS program. But at very small entities, SMS can be pretty bare bones and still provide safety benefits. The most important aspects are a system for identifying hazards and evaluating risks and disseminating that information within the company. That’s where ASAP comes in. Most of us know that in many cases, managers and executives have no idea how frontline workers make an operation actually function. Getting that safety information from the frontline workers, analyzing it and using it to take corrective action is critical to avoiding future problems. It’s also a way—under the FAA’s compliance philosophy—to avoid legal enforcement sanctions.
The heart of the FAA’s compliance philosophy: The Compliance Philosophy represents a focus on using—where appropriate—non-enforcement methods, or “Compliance Action.” Compliance Action is a new term to describe the FAA's non-enforcement methods for correcting unintentional deviations or noncompliance that arise from factors such as flawed systems and procedures, simple mistakes, lack of understanding or diminished skills. A Compliance Action is not adjudication, nor does it constitute a finding of violation. A Compliance Action is intended as an open and transparent safety information exchange between FAA personnel and you. Its only purpose is to restore compliance and to identify and correct the underlying causes that led to the deviation. Examples of Compliance Actions include on-the-spot corrections, counseling and additional training and remedial training. Generally, if you are qualified and both willing and able to cooperate, the FAA will resolve the issue with compliance tools, techniques, concepts and programs. Only on discovery of behavior indicating an unwillingness or inability to comply, or evidence that, for example, supports an intentional deviation, reckless or criminal behavior, or other significant safety risk, does the FAA consider an individual ineligible for a Compliance Action.
If you think your air-taxi or repair station is too small to manage an ASAP there are at least two organizations that will handle the administrative burdens for you: the Air Charter Safety Foundation and the Medallion Foundation. It’s worth looking into before you get an enforcement letter from the FAA.