Safety Pilot: You be the judge

April 1, 2009

Bruce Landsberg was named president of the Air Safety Foundation in February.

The great football coach Vince Lombardi used to exhort his Super Bowl-winning Green Bay Packers that “Winning isn’t everything—it’s the only thing.” That’s fine for professional sports, but shouldn’t “safety” replace “winning” as what pilots, and the agencies that oversee them, should be thinking? However, the FAA is charged with enforcement to be used when more collaborative methods for safety fail. Did they make the right choice in this case? What about the pilot? You be the judge.

There’s a program for everyone. There’s NASA’s Aviation Safety Reporting System (ASRS), which we’ll get to shortly. Another, and in the news lately, is the Aviation Safety Action Program, or ASAP. Operational for more than a decade, it allows airline pilots, mechanics, or anyone else to report without fear of punishment when they see something unsafe. It’s a good idea and a number of airlines signed up. As reports rolled in, hundreds if not thousands of operational changes were made.

According to the FAA’s advisory circular (AC 120-66B) on ASAP: “The objective of the ASAP is to encourage air carrier and repair station employees to voluntarily report safety information that may be critical to identifying potential precursors to accidents. The FAA has determined that identifying these precursors is essential to further reducing the already low accident rate. Under an ASAP, safety issues are resolved through corrective action rather than through punishment or discipline.”

The AC continues that participants “…can identify and report safety issues to management and to the FAA for resolution, without fear that the FAA will use reports accepted under the program to take legal enforcement action against them, or that companies will use such information to take disciplinary action. These programs are designed to encourage participation from various employee groups, such as flight crewmembers, mechanics, flight attendants, and dispatchers.”

It’s a great concept, but toxic relationships between airline labor and management caused USAirways, Delta, and American Airlines to suspend their programs (Delta has since reinstated its program). Last year the FAA’s acting administrator voiced his disappointment at the standoff, as did the NTSB. The various parties were urged to stop bickering and go for the greater safety good.

But both agencies weren’t so high-minded in a recent case. Perhaps they had good reason to be tough. You decide. Another program—the Voluntary Disclosure Reporting Program—is also designed to open up communication, as long as operators confess before the FAA finds out about an infraction. Let’s go to the game tapes.

In 2004 a young charter pilot flying an old turboprop had difficulty extending the landing gear. According to FAA documents, after several recycles, he was about ready to blow the gear down using the backup system when it finally extended and he landed uneventfully. At this point, he should have written it up and called the company mechanic for advice. Instead, he flew the next leg of his trip with no problems. Upon landing he sought guidance. The tech replied that it was pretty common in cold weather and to just keep an eye on it. Two days later the pilot had the same problem and again he got the gear down. The pilot received the same advice from another mechanic and the chief of maintenance—just keep an eye on it.

Bad idea and in violation of the carrier’s operation specifications. Ops specs are the rules by which the company agrees to fly, and they specify in great detail exactly how things are to be done. The specs required that any maintenance discrepancy be noted in the aircraft log. A mechanic should analyze and defer the item or fix it. However, in the real world, write-ups may ground an aircraft, which means lost revenue, which means your services as a pilot may no longer be needed. It’s a Hobson’s choice for a new pilot.

The next day the pilot refused the aircraft and the dispatcher assigned a different pilot, but the gear hung up again. Pilot Two declared an emergency and diverted, eventually getting the gear down. At this point, the company decided it should report the incident through voluntary disclosure. The pilot declaring the emergency, the first pilot, the chief maintenance inspector, the dispatcher, and two technicians all participated in the disclosure.

They followed the guidelines in Advisory Circular 00-58, voluntarily advising the FAA of the incident and what the company was doing to prevent a recurrence. The FAA’s principal maintenance inspector (PMO) accepted the corrective action and responded, in writing, “the matter does not warrant legal enforcement action.” That might have been the end of it, but it wasn’t.

A few months later the FAA’s regional attorney notified the first pilot that his certificate was being suspended, despite the letter from the PMO. Neither the company nor any other personnel were issued a violation, which sounds rather selective to me. An attorney took the pilot’s case and filed an appeal with NTSB to see if this apparent breach of safety faith could be rectified. The NTSB law judge, surprisingly, did not see anything egregious about the FAA’s conduct and ruled that he had no jurisdiction to review anything relevant to this advisory circular. He could only review the sanction and agreed to reduce it by 10 days (from 60 days) since the pilot had cooperated with the investigation. The pilot appealed, and the full NTSB agreed with the law judge. The only avenue left was a petition for review in the U.S. Court of Appeals, and that is where the case is now being pursued.

That the pilot and all the other company staff violated a rule is not in question. That is acknowledged, and there are procedures for the FAA to refuse to accept any voluntary disclosure filing if it thinks the parties involved are not dealing in good faith. If you’ve got a bandit operator or pilot, that’s a different story, but it doesn’t appear to be the situation here. The PMO interviewed the airline employees, agreed with the remedies, and accepted the report.

The AOPA Air Safety Foundation is concerned about the adverse impact that the FAA’s enforcement posture under these circumstances may have on future participation in these voluntary reporting programs in particular and aviation safety in general.

For GA flight operations there is really only one program: NASA’s Aviation Safety Reporting System (ASRS) was established to provide a solid flow of safety information while shielding the reporter from self-incrimination on a safety issue. It’s been around for decades and works well. You can go to AOPA Online or search for ASRS on the Web to file a report—by mail or electronically—to describe any safety problem. Your identification is stripped from the report before it gets forwarded to the appropriate groups. Even if the FAA identifies the reporter, if you’ve complied with the program, you’re protected from the sanction if not the violation.

It may be that NTSB has no authority to review this AC under current guidelines, but perhaps it should, just as it does with ASRS. Had the pilot also filed a report under ASRS, he would have been protected under the waiver-of-sanction provision. That may be the most practical message out of this unfortunate situation—whenever there is a “deal,” as ATC likes to call it, report it all ways, including through ASRS. This incident happened more than four years ago and the violation’s pending; a pilot’s career is derailed and he is waiting tables.

ASF enjoys a collaborative relationship with both the FAA and NTSB, as we should. We’re all here to make aviation as safe as possible. My hope is that perhaps legal and enforcement actions under these circumstances can be looked at with a broader view toward safety. Let’s collectively focus on preemptive activities, as opposed to merely punitive, since the payoff is much bigger.

Winning really isn’t everything, it’s how you play the game—especially if you wrote the rules.

Now that I’ve thoroughly prejudiced the witnesses, I’d like to hear your thoughts—either way. Drop me an email at asf@aopa.org . —BL