Questionable Accountability

The Federal Aviation Administration (FAA) proposed a $12 million fine July 28 against Southwest Airlines for sloppy repairs to fuselages on its B737 jets. What appears as significant regulatory action appears distinctly as another tardy and weak effort to assure the safety of the flying public.

“The FAA views maintenance very seriously, and it will not hesitate to take action against companies that fail to follow regulations,” vowed FAA Administrator Michael Huerta.

Tough talk and a proposed fine that are both years late, when timely FAA oversight might well have made a difference. The whole announcement of this “civil penalty” against the airline appears scripted for public consumption.

The FAA says it seeks financial disciplinary action based on Southwest’s maintenance lapses from 2006 to 2009. Note that it is now 2014, five years after the closing window of alleged shortcomings. Financial penalties and mandated procedural and personnel changes would have made eminent sense in 2010; now, years after the fact, the FAA’s belated action is too late to impact procedures, or to make a meaningful imprint on the minds of those responsible.

Not to mention that had the FAA acted in a timely manner, the sudden 60-inch tear in the upper fuselage of a Southwest jet cruising at 34,000 feet in April 2011, forcing an emergency landing of the planeload of terrified passengers, might not have occurred.

 

<a href=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/hole.jpg”><img class=”size-medium wp-image-2869 ” alt=”Hole blown in the aluminum structure of a Southwest jet when the lap joint failed ” src=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/hole-300×169.jpg” width=”300″ height=”169″ /></a> Hole blown in the aluminum structure of a Southwest jet when the lap joint failed

The FAA says that proper procedures were not taken when fuselage skins were repaired on Southwest’s jets. Specifically, that the airplanes were not placed on jacks to stabilize them for the repair work; sealant was applied between overlapping skin panels, but not all rivet holes were affixed with fasteners within the time allowed to assure a good bond and corrosion-free service.

The repairs, according to the FAA, were not performed in accordance with airworthiness directives (ADs). However, the FAA adds that it approved the repairs after the airline provided proper documentation. So, did the FAA subsequently okay the repairs even though they were made on airplanes that had not been first placed on jacks, and rivets were applied in the time allowed after sealant was applied? And it took five years for the FAA to determine that the paperwork was sloppy and to issue a proposed fine? Where were the FAA’s on-site inspectors when the repairs were first made?

Lots of questions. No answers.

&nbsp;

<a href=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/faa.jpg”><img class=”size-full wp-image-2870 ” alt=”Looks official, but the globe should be a pillow until the agency acts like a rigorous regulator ” src=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/faa.jpg” width=”261″ height=”192″ /></a> Looks official, but the globe should be a pillow<br />until the agency acts like a rigorous regulator

Now begins a period of negotiation between the FAA and Southwest Airlines, in which the likely outcome is a dramatic reduction in the fine.

A fine against American Airlines for $162 million was subsequently whittled down to $25 million — an 85% reduction.

For Southwest’s lawyers, this 2013 precedent will surely provide a stimulus for vigorous argument.

Previous maintenance lapses do not seem to result in increased fines. From 2005 to 2013 the FAA levied $1,155,000 in proposed penalties against various airlines for maintenance lapses. Three forfeitures were announced against Southwest, the largest being $45,000. Eight penalties were proposed against Alaska Airlines, one of which was a measly $5,500. You would think that with eight proposed penalties from 2006-2007 there would be a special inspection of the Alaska’s maintenance practices across-the-board, especially when the airline came within a hairsbreadth of losing its FAA-issued operating certificate after the fatal crash in 2000, a direct result of maintenance deficiencies.

Each proposed penalty is viewed in isolation, not as part of a pattern warranting scrutiny as to the root causes of the maintenance violations. The flying public is unaware of these penalties; that is, unless the FAA decides to make a show of toughness.

The penalties would put a crimp in a household budget. For a corporation, they are not even as irritating as a minor hangnail.

Southwest earned a net profit in 2013 of $804 million. The proposed penalty of $12 million represents a mere 1.5% of 2013 profits. Negotiated down by 85% — as in the American Airlines case — will result in a penalty of just $1.8 million, or about two-tenths of one percent of Southwest’s 2013 profits.

These thoughts occur:

1. FAA action regarding AD noncompliance should occur within 12 months of discovery.

2. A forfeiture should be meaningful. Say, 5% of annual profits for each instance, times the number of airplanes affected.

3. The FAA should not be in the business of negotiating with the airlines what they will actually pay. The FAA is the regulator; if irregularities have been documented by the FAA’s principal maintenance inspector, the airline should be fighting to retain its operating certificate, not the amount of a reduced fine.

4. If the FAA were serious about safety and accountability, it would annually publish for the flying public each airline’s ranking using a star system similar to that used for automobile crashworthiness. For aviation, a three-star rating system would apply:

One star (¶): the airline meets FAA standards. If the airline is not meeting these admittedly minimum regulations, it should not be operating.

Two stars (¶¶): the airline more than meets FAA standards and has in place some voluntary safety programs.

Three stars (¶¶¶): all of the above, plus the airline has a pro-active safety culture with a non-punitive program to encourage employee reporting of deficiencies.

A civil penalty of less than $1 million would knock down an airline’s star rating by one star for six months. If already at the minimum one-star level, the airline would have its rating reduced to just a half-star. For penalties equal or greater than $1 million, the airline would be penalized by one star for a full year,

In pretty short order, we would see airlines scrambling to achieve a three-star rating and to make this ranking a feature of advertising, annual reports, and even on the corporate letterhead. Imagine a little logo on a proud airline’s web site and in its advertising: the great seal of the FAA emblazoned with three gold stars and a motto like, “Top ranking for safety, for five years and still improving.”

The flying public would have a ready measure; the airlines would have a meaningful incentive to avoid fines.