What Do You Have to Do to Get Fired?

Southwest Airlines and the saga of AD 2004-07-08


The instructor taught that ADs were extremely important to follow or else dire things would result ... i.e. loss of A&P certificate, fines, and or criminal prosecution. So who’s being prosecuted?

History
We don’t have to go back too far to recall that there was criminal action taken against maintenance people and technicians, e.g. Eastern Airlines, Valujet, where serious airworthiness issues were involved in accidents or threats of accidents.

Criminal penalties are nothing new in the air carrier business. But they are usually aimed by FAA at technicians and others in the business. In addition to the cases mentioned, there were threats of criminal actions in the Alaska Airlines case. And we all remember the raids by U.S. Marshals and other law enforcement people in the Sun-jet Payne Stewart accident in Florida. Criminal penalties that threaten FAA managers however, as noted by Congressman Oberstar, would be something new.

Advisory Circular 00-58 self-disclosure
SWA made a self-disclosure under the instructions of AC 00-58 admitting that it may not have been in compliance with AD 2004-18-06 and that the recurrent inspection requirements of the AD may have been overflown by some of its aircraft. The self-disclosure program only applies to air carriers and is routinely used in an attempt to avoid sanctions when and if the FAA finds out about the violations. There are limitations to the rules governing sanctions exemption however.

The theory behind the self-disclosure process is that if a company finds it violated the regulations and reports these violations to the FAA before the FAA finds out about them there will be a certain level of immunity from sanctions when corrective action is prompt and effective. However, it must be clear that there is no guarantee of immunity contained in Advisory Circular 00-58, only that the FAA may dispense with a sanction if the conditions of application are satisfied. The process is designed for safety and to encourage self-disclosure by air carriers to further the overall safety mandate. The violations must be non-intentional and a process for correction has to have been started. As has been stated in the newspapers, some have described this process as a “get out of jail free” program. It clearly is not and it certainly does not insulate against any criminal charges. Even when there are no problems with the conditions of application, the FAA still has the power and discretion to impose sanctions, as it has against SWA. It is not a way to guarantee a company against sanctions for violations but it may help to mitigate sanctions.

The problem
Further recent newspaper reports say that some longtime inspectors testified before Congress that the FAA allowed SWA to fly the uninspected aircraft and continued to allow it to fly these aircraft even after defects were found. These facts, if true, should torpedo the whole FAA enforcement action against SWA and should open the door to serious sanctions against certain FAA employees. I would have little difficulty in constructing a defense in a case such as this simply because of the FAA’s conduct. This case will probably never come to a hearing where sworn testimony would be taken. I predict the case will be quietly withdrawn or compromised at an appropriate time.

The inspectors said that their FAA bosses were informed when they complained about the overflights of the AD requirements, but that they were told to hold up on pursuing safety issues under threats to their jobs!
There are two issues at work here. One, the self-disclosure was probably made too late. The FAA already knew of the overflights of the AD requirements but did not take any action. In my experience it usually does not make your case worse by self-disclosing and still may help to mitigate any sanction. The inspectors knew all along and informed their boss … the FAA.

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