In the 1960s two deputies on CBS strove to rein in the naughty. One lawman did the right thing; the other lawman … well, did the wrong thing for the right reasons. Festus Haggen from Gunsmoke was instrumental in keeping Dodge City free of crime; he’s straightforward, easy-going, talks to you, wanting to keep you and his town safe. Barney Fife of Mayberry sets people on edge; he quotes the regulations while talking down to folks; wanting to be the Law, despite squirreling a single bullet safely in his shirt pocket to protect his foot.
I recently read over Federal Aviation Administration Order 2150.3B, revision 9 (R9), Enforcement Actions; it’s difficult to determine if it’s a Fife-type or Festus-type FAA oversight and correction policy. R9 has much in common with the deputy duo and the aforementioned 1960s syndicated television shows; they’re all on a causality loop, repeating itself over and over with the same outcome.
A recent aviation blogger said the FAA is being redirected to be kinder and gentler with R9’s introduction because the FAA has become a money-grubbing violation spewing machine, doling out civil penalties or confiscating certificates with careless abandon. The blogger longs for a new dawn of wrist-slapping, accompanied by Opie Taylor promises to do better.
But we’ve been here before
Yogi said, ‘It’s déjà vu, all over again’. We, as an industry, teeter on an edge; on one side: what’s perceived as fair; and on the other: what’s considered overkill. Are there civil penalties that go too far? Yes, I’m sure. Can the FAA and the NTSB get in the weeds? Yes, most definitely. Should each certificate holder be portrayed as innocently playing by the rules; walking the straight and narrow all the time? Not on your life.
Since the '80s, I’ve dealt with the airworthiness management and labor folks in Parts 121, 135, 145, maintenance examiners, general aviation mechanics, and Part 147 schools. Aviation folks are a proud, talented, and honorable group. Sadly, every workgroup has bad apples, always have, always will. Whether they’re ignoring maintenance steps or landing a gyrocopter on the Capitol lawn, they exist.
Civil penalties are meant as deterrents; monetary fines or certificate actions have been successful in curbing irresponsible behavior. Despite popular belief, fines do not pay for the local Flight Standards District Office’s new bass boat; that would certainly make all civil penalties suspect. R9 is designed to throttle back the impact of civil penalties; to liberally employ Warning Notices and Letters of Correction instead, placing the emphasis on the FAA inspector to build cases for unsafe patterns/habits before fines can be leveled against a violator.
In general aviation that’s a no-brainer; I could count on one mitten how many mechanics and/or pilots intentionally break the regulations habitually. A&P certificate holders don’t memorize the FARs enough to know where every ‘must’ and ‘may’ lurks. But there are the stand-outs; those who blatantly break the regulations; those who would misuse, e.g. their DME to repeatedly certify those who can’t read English or are shy hours on their DD-14. These violators are rare, but not rare enough.
Person vs. entity
Also lumped into R9 are the Part 121, Part 135: 10 or more, and larger Part 145 certificate holders. Here R9 takes a turn for the ambiguous; a legal interpretation conundrum. The larger the organization, the easier it is to confuse the evidence, going from a Festus to Fife situation in a Marshall Dillon fast draw second.
In R9, the term ‘person’ represents the violator, while the term ‘entity-holding-an-FAA-certificate’, seemingly refers to an organization, e.g. airline or repair station. However, past FAA orders use ‘person(s)’ to mean both individual(s) and organization(s). So who decides what ‘person’ means? It falls to FAA Legal to interpret the execution of FAA policy; they interpret policy as they view it, without the bias of an inspector’s closeness to industry. But maintaining distance doesn’t ensure insight.
Let’s look at two situations: yesterday, Jane Mechanic messed up; she changed a nose gear light without a maintenance manual (MXM) reference. She was rightly given a Letter of Correction – end of story. She’s a ‘person’ who received an Administrative Action; she’ll probably be monitored to assure she errs never again, but her slip-up didn’t rise to the civil penalty level.
Today Brand X airlines’ contractor failed to follow Brand X’s revised maintenance program; indeed, the contractor didn’t even have access to Brand X’s general maintenance manual (GMM). Should ‘person’, Brand X, be treated equally as ‘person’, Jane Mechanic? Are these patterns similar? How does Jane’s MXM faux pas and Brand X’s GMM error differ?
Brand X wrote their own GMM; Jane didn’t write the MXM. Brand X’s GMM required approval; Jane’s MXM was approved previously for the manufacturer. Jane will break the pattern; she’ll only perform maintenance with the MXM handy. Brand X’s pattern began the day they wrote their GMM, got it approved, revised it, had their contractors approved and trained. Even before Brand X chose to ignore their own GMM procedures, their pattern was established.
If FAA Legal interprets the word ‘person’ – per R9 – to include every entity as a ‘person’, then Brand X’s pattern is debatable. The certificate management office’s airworthiness inspectors will have to closely monitor hundreds of mechanics, management, and contractors in countless airports to determine violation patterns or habits. Why is that important? Because Part 121 operators are a different industry; their safe operation relies on compliance with their approved manuals. If they don’t comply jets could crash: from weight and balance issues; from unapproved maintenance practices; or from improper deicing methods, even before their pattern emerges.
And we’ll realize that we’ve been here before. An accident will lead to an NTSB or Congressional hearing; past lessons will be revisited. Promises will be made to the families; the policy changes will be reexamined; officials and airlines will be vilified. There’ll be both Festus-type and Fife-type specialists pushing revisions that will bring us right back to the way things were before.
