FAA blamed for inconsistency in levying fines against airlines

By Michael Fabey

A spate of unusually large fines against airlines this year suggests that the FAA is getting more aggressive in enforcing safety regulations. But as to what is motivating the crackdown, the answer depends on whom you ask.

Some airline analysts said it was just another peak in a long history of get-tough cycles at the FAA.

Others attributed it to increased congressional oversight and resulting political pressures.

The FAA itself claimed that it had found ways to "work smarter" when it comes to identifying safety violations and keeping airlines in compliance.

No matter what’s actually behind the jump in fines, the Government Accountability Office recently criticized the FAA’s historically inconsistent enforcement patterns, saying they had damaged the agency’s credibility.

Analyst Darryl Jenkins, founder of the aviation economic website the Airline Zone, is a proponent of the get-tough cycle theory, which he said has thrown a great deal of uncertainty into the aviation industry, and is a vocal critic of what he sees as the FAA’s inconsistent enforcement.

"We go through this every 10 years," Jenkins said. "One day they are loose, and the next they are too tight. With this inconsistency, nobody knows what to expect. It would be better if they had one line and maintained it and held that position."

After ValuJet Flight 592 crashed in the Everglades in 1996, Jenkins said, the FAA "became very hard for a couple of years."

Despite the history of get-tough cycles, some analysts say the unusually big fines this year are the result of criticism by Rep. James Oberstar (D-Minn.), chairman of the House Transportation Committee, of the FAA’s safety oversight practices.

Oberstar’s hearings brought to light what the congressman said were examples of too-cozy relationships between airlines and the FAA inspectors who oversee compliance.

While the criticism clearly embarrassed the FAA, the agency insists that the larger fines and more vigorous enforcement are the result of the airlines’ own actions and a relatively new risk-assessment system.

"Rep. Oberstar has been keenly interested in aviation safety issues for many years," said FAA spokesman Les Dorr. "We have the same responsibility to execute our oversight duties properly, no matter what the level of congressional interest is."

The agency, he added, did not make a conscious decision to focus on fines.

"It’s more accurate to say we’re working smarter," Dorr said. "We now use a risk-based analysis system that helps us target areas in which the data suggest there is the most significant possibility of a safety hazard in an air carrier’s operations. As a result, we’re able to do an even better job of discovering safety issues that may or may not lead to enforcement action.

"Remember, our ultimate goal is to obtain compliance with FAA regulations, and civil penalties are just one tool, albeit an important one, in achieving that purpose."

Still, the growing size and frequency of the fines are instructive.

Last month the FAA proposed $9.2 million in fines: $5.4 million against US Airways and $3.8 million against United.

When added to the $7.5 million in fines the FAA levied against Southwest earlier in the year, that comes to $16.7 million in fines against just three carriers.

In contrast, the agency collected about $7.3 million in more than 370 cases during all of 2008, according to a Travel Weekly tabulation of FAA enforcement data.

Dorr attributed the size of the fines to a formula used by regional FAA officials. In the cases of the three largest fines this year, he said, the proposed penalties were higher because they addressed higher risk factors than fines had addressed in previous years.

"The large civil penalties proposed against Southwest, US Airways and United in 2008-2009 resulted in part from the carriers’ deliberate operation of aircraft in an unairworthy condition," Dorr said.

The Southwest penalty dates to FAA charges in 2008 that the airline operated 46 Boeing 737s that were overdue for mandatory inspections for fuselage cracks.

In a similar vein, the FAA said US Airways had operated an Embraer 190 without inspecting the aircraft to prevent a cargo door from opening during flight.

US Airways also failed to inspect an Airbus A320 for cracks in a landing gear part, ignored its own maintenance requirements by failing to inspect engine work on a Boeing 757 and failed to conduct proper inspections on other aircraft, the FAA said.

In addition, the agency said that US Airways operated an Airbus A320 that had not met the airline’s maintenance requirements for an engine repair.

The FAA said United operated a 737 that had not been repaired properly; United mechanics found that two shop towels, instead of required protective caps, had been used during a maintenance procedure.

US Airways said the airline cooperated with the FAA to investigate and correct any discrepancies.

In fact, Dorr noted that the penalties had resulted from violations that the airlines had self-reported.

"The more significant fact is whether the air carrier took corrective action once the violation was discovered," Dorr said. "The civil penalties are intended to deter operators from deliberately violating rules, not from self-reporting when they do."

Still, the size of the fines this year have raised questions among some analysts.

"As always, the problem with the FAA is that they are not consistent," Jenkins said.

That criticism was echoed in a report from the GAO, which found that FAA fines had more than quadrupled over three years, from $13 million in 1996 to $56.7 million in 1999.

The GAO also found little logic in the amounts of fines the FAA proposed and the amounts actually collected. Enforcement inconsistency, the GAO said, weakened the agency’s credibility.

For example, the amount of recommended fines dropped by about 54% in 2003, compared with 1999, the GAO reported.

On the collection side, airlines and other violators paid about $161 million in penalties from 1993 to 2003, only about half the fines agency inspectors had initially proposed, the GAO reported.

Moreover, the size of the civil penalty proposed this year against Southwest was about 26% less than the amount initially levied against the carrier in 2008.

The FAA says it plans to be more consistent in how it enforces safety regulations.

"We are now providing managers and supervisors in safety offices around the nation with guidance to ensure that FAA decisions are consistent with rules and policies and are communicated in a standard, consistent manner," Dorr said. "The goal is to maintain safety while minimizing disruptions to passengers."

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