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How Does The FAA Calculate A Civil Penalty?

by Greg Reigel 28. February 2017 08:16
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Every so often the Federal Aviation Administration ("FAA") will issue a press release about its proposed assessment of a civil penalty action against an air carrier, maintenance facility or some other business. In some instances the penalties proposed by the FAA may be millions of dollars. And while the FAA’s press release may cite to some of the violations the carrier or facility allegedly committed, the FAA never explains exactly how it arrived at the amount of the civil penalty it proposes to assess.

To provide a little background, when the FAA believes a certificate holder (whether an airman, air carrier, repair station or otherwise) has violated a regulation, it may pursue legal enforcement action against the alleged violator. The action can be against the party's certificate, also known as a "certificate action." In this situation the FAA seeks to suspend or revoke the party's certificate. Alternatively, the FAA could seek to impose a civil penalty or fine against the alleged violator, also known as a "civil penalty action."

Civil penalty actions are typically used against companies or entities, as opposed to individuals, that hold FAA certificates. The FAA may also pursue civil penalty actions against companies or individuals who do not hold FAA certificates (e.g. companies or individuals who violate hazmat regulations or individuals who violate passenger regulations such as interfering with a flight crewmember).

Sometimes, the FAA will bring a civil penalty action to avoid the six month limitation of the NTSB's stale complaint rule in a certificate action, and benefit from the longer two year limitation applicable to civil penalty actions. For example, if the FAA fails to initiate a certificate action within six months of discovering an alleged violation, it will resort to a civil penalty action which allows the FAA two years within which to initiate the action.

In order to determine the appropriate amount of the civil penalty for a given regulatory violation, the FAA uses the Sanction Guidance Table in FAA Order 2150.3B, Appendix B. If the amount of the proposed civil penalty is less than $50,000, then the FAA handles the action. However, if the proposed civil penalty is more than $50,000, then the United States Attorney's office handles prosecution of the action.

The Sanction Guidance Table provides a range of penalties based upon the type and size of the violator, the type of alleged violation and the number of alleged violations. The sanction guidance indicates a minimum and maximum range civil penalty for each instance of a violation of various regulations. And while the Sanction Guidance Table’s sanction ranges generally account for different types of violations, as well as the nature, extent and gravity of each general type of violation, a sanction isn’t calculated through a “strict mathematical formula”, but rather is determined based upon a judgment “of where a case lies along a spectrum of gravity.”

To calculate a civil penalty sanction, the FAA first determines the type and size of the violator and also whether the violator is a Small Business Concern. Next, the FAA starts with the middle of the range for the particular act or omission that caused the violation. It then specifically looks at a variety of factors that may be considered aggravating factors, which would result in increase in sanction, or mitigating factors which would decrease the sanction. These factors include:

  1. the nature of the violation;

  2. whether the violation was inadvertent and not deliberate;

  3. the certificate holder’s level of experience;

  4. the attitude of the violator (Note: The FAA does not consider a good compliance attitude, by itself, a basis for reducing a sanction. Fortunately, the FAA also does not consider a violator’s failure to respond to a letter of investigation, representation by counsel or contesting of a violation a poor compliance attitude);

  5. the degree of hazard;

  6. whether an employer or other authority has taken any action (i.e. if the employer took disciplinary action or criminal prosecution was involved);

  7. use of a certificate;

  8. violation history (i.e. a history of prior violations. Since compliance is expected, a violation-free history is not considered a mitigating factor);

  9. decisional law;

  10. the violator’s ability to absorb the sanction (i.e. whether the violator is able to pay a civil penalty and the effect the civil penalty will have on the violator’s ability to continue in business);

  11. consistency of sanction;

  12. whether the violation was reported voluntarily (this takes into consideration whether the violator reported the violation through a program such as the Aviation Safety Reporting Program, the Voluntary Disclosure Reporting Program or the Aviation Safety Action Program); and

  13. corrective action (e.g. corrective action that exceeds the minimum regulatory or statutory requirements. Corrective action taken after the violator becomes aware of the deficiency and before the FAA learns of the violation warrants greater mitigation than if the action is taken after the FAA takes enforcement action).

In some cases, where the degree of the violator’s fault is minimal, the potential hazard is very low, and no aggravating circumstances are present, the FAA may select a civil penalty amount that is below the range specified in the Sanction Guidance Table. Conversely, the FAA may select a civil penalty above the range if the violator’s fault was significant, the violation involved significant safety risks, the violator failed to take corrective action over an extended period of time, the violator has a poor compliance attitude or history, or the FAA feels it needs to make an example of the violator (or, as the FAA puts it, “to provide an economic disincentive or regulatory noncompliance”).

What happens if the case involves multiple violations (e.g. multiple violations of a single regulation, a single violation of multiple regulations, or multiple violations of multiple regulations)? Fortunately, the FAA doesn’t just determine the amount for each violation and then add them up. Rather, the FAA is required to consider the totality of the circumstances relating to the multiple violations, paying special attention to the seriousness of the potential hazard caused by the violations as well as the degree of the violator’s fault for the multiple violations.

At the end of the day, the Sanction Guidance Table is just that, guidance. And while the FAA, and its inspectors and attorneys, are required to follow the guidance, the FAA still has prosecutorial discretion. That is, the FAA ultimately has the discretion and authority to determine not only whether to pursue a civil penalty action, but also the type and amount of the sanction. But at least the Sanction Guidance Table provides some insight as to how the FAA may have arrived at a proposed sanction and what aggravating or mitigating circumstances it may, or should, have considered.

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Greg Reigel

The Top 3 Reasons to Network

by Lydia Wiff 27. February 2017 10:31
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Over a year ago, I wrote two posts about networking at a business aviation conference.  While networking seems like a no-brainer to those already in the industry, I found that it is difficult to break into the different groups as a student (and still do as a young professional).  While some professors and advisors push networking, or provide different opportunities, I feel that many students do not network at all.  For example: four years of higher level education, and many students have very few industry contacts outside of their university.  This to me is a worrying situation as our entire industry is often based on the connections you hold with others, after they look at your resume, transcript, etc.  In today’s post, I will discuss my top three reasons to network, no matter what industry you are in.

#3: Networking is Easy

For all the introverts, extroverts, skeptics, and everyone else in-between, I promise you it is not as intimidating as it seems.  Sure, you say I have been networking several years and that it does not scare me.  I am going to tell you a secret: I am an introvert and it scares me to death every time I go to a networking event.  By nature, big crowds are not my thing and I would rather talk to a person one-on-one. 

The key to making networking easy is practice.  Simple ways of doing this are talking with new classmates each semester, getting to know your academic advisor, or other professors.  You can even extend this into your personal life by engaging with friends, family, the community, or people in your church.  Conversation is all about passing the ball back and forth.  A good way to start is to say “Hi, my name is ‘x’”.  They will usually respond with their name and what their title is, etc.  This is a good time to ask them about how they got to where they are, about their airport/company/airline, and what they enjoy about their job.  The key is to get the conversation rolling and you will find out what you have much in common.

Other ways of making networking easier is to smile, be friendly, use positive body language, and of course, PRACTICE! 

#2: Networking is (Almost) Free

One day, you are sitting in class and your professor walks in with a visitor.  This visitor works in your industry in a job that closely relates to your class and you are drawn in to their presentation about their position, the company they work for, and more.  Maybe on another occasion, you find yourself traveling and while doing your homework, someone inquires about your field of study.  Perhaps you’re at your favorite coffee shop and a fellow customer asks about your presentation.

These “happy accidents” happen at almost no cost to you as a student.  They are often the by-products of classes you are already taking, professors and peers you interact with, or as simple as a passing comment to a fellow traveler as you are on vacation.  Students are always on a budget, so it is important to realize that networking can cost you very little in the short term, but the intangible benefits are massive in the long term.

Let me give an example: Last week, I had the opportunity to attend a strategic planning session for the Great Lakes Region (GLC) Chapter of the American Association of Airport Executives (AAAE).  This even was a happy accident as Grand Forks International Airport happens to be hosting their Winter Board Meeting in preparation to hosting the GLC Regional Conference.  Our professor for Advanced Airport Operations knows many members of the chapter and arranged for us to attend a one-hour session during our normal class period.  Many students carpooled and it only cost us the gas to get to the hotel.  We met at least 20 different people in management positions at airports in the GLC Region.

My point is that networking can be very affordable for students.

#1: Networking is Always a Good Idea

Now, I am probably being obvious here, but getting to know those in your industry and field is always a good idea.  It builds professional relationships that will last for years and you end up with a network that you can contact at any point. 

For instance, I am working on a portfolio for my Advanced Airport Operations class that involves me answering various questions related to my field.  In some cases, it requires a lot of research and personal interviews.  I reached out to an individual who runs a small airport in the western part of the United States and interviewed him.  This was all because I had applied for a job there and even though I did not get the position, he told me to contact whenever I needed something. 

As my professor writes in her syllabus about attending class, networking: “it’s a good idea…”

Final Thoughts…

I believe that networking is a valuable tool that we need to instill into our professional lives, but also encourage it in those around us whether a fellow coworker, a student, or a family member.  I would not be able to network as well without the encouragement (and sometimes prodding) from those around me in many areas of my life.

I attribute my network to the individuals who are willing to just to have a conversation.  And really, sometimes networking is as simple as a cup of coffee with a coworker – it is easy, cheap and always a good idea.

 

Happy Networking!

Image courtesy of Google.com

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Safety is an investment, not a cost! Ramp Safety and Business Aviation

by Joe McDermott 20. February 2017 14:16
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The quality of ground operations staff training at FBOs and business aviation handling agents across the globe varies greatly, with some organizations using NATA Safety 1st or similar dedicated programs while others rely on in-house developed systems, some of which are not up to the job and often suffer from insufficient oversight.

Safety Management Systems (SMS) can see just as much diversity in the sector.

The consequences of a training program or SMS which is under resourced or treated as an annoying requirement to be left to the safety/training manager alone are, quite frankly, dire. Safety failures on the ramp can cause serious injury and even death. In terms of physical damage to aircraft such failures can cost many millions of dollars even for what seem to be a minor incident, just ask your aviation insurance agent.

Contact between aircraft and ground service equipment accounts for more than 80% of ramp incidents. Unsurprisingly, ineffective communication is at the heart of most incidents. Without a robust training program with follow-on recurrent training and a suitable, evolving SMS, effective communications on the ramp will not exist and accidents will invariably happen, given time.

Safety must be rooted in a culture that starts at the very top of an organization. It is very much in the interest of Accountable Managers (AKA Accountable Executives) to understand that safety is an investment, not a cost! Taking a proactive stance on the subject can allow an Accountable Manager to energise his/her team with the enthusiasm to approach joining up effective training and SMS implementation for the benefit of all.

Here are a few misconceptions that prevail on ramp safety:

  1. Once the ramp crew has been trained, the job is done.
  2. Ramp training is only for the ramp crew.
  3. Safety oversight lies with training manager only.

 

Accountable Managers may well be surprised how reasonable such programs can be, especially when compared to an incident. Costs are far from prohibitive, even for smaller FBO and BAHA.

NATA's Safety 1st Professional Line Service Training (PLST) program sets the standard for line service training. AMR Combs created the first training program for line service specialists in the mid ‘80s. In the late 1990s, the Aviation Training Institute (ATI) produced a new video edition of PLST. NATA purchased ATI's PLST in 2000, improved it again, and subsequently introduced it under the NATA Safety 1st brand of line service training tools. That version of the training is used today by more than 1,100 FBOs and thousands of line service specialists across the United States and internationally.

Since the launch of the NATA Safety 1st and the introduction of PLST, NATA have released numerous other online training tools for all general aviation businesses.

In 2014 ICAO set up the Ground Handling Task Force to look at safety, efficiency and standardization issues associated with ground handling.

The International Business Aviation Council (IBAC) launched IS-BAH, the International Standard – Business Aviation Handling in May 2014 at EBACE. The standard was developed at the urging of the European Business Aviation Association (EBAA).

IS-BAH Standards based on:

  • ICAO Standards and Recommended Practices (SARPs)
  • Business Aviation Best Practices

 

IS-BAH is a set of global industry best practices for business aviation ground handlers, which features at its core a SMS. The IS-BAH follows the structure of the International Standard for Business Aircraft Operations (IS-BAO) Program and incorporates the NATA Safety 1st Ground Audit Program. These two systems are a great fit for any FBO or business aviation ground handler.

IS-BAH is the global industry standard for handlers and operators around the world to meet the coming SMS requirements from ICAO.

This standard really is achievable for any FBO or Business Aviation Handling Agent, small or large. Increasingly aircraft operators are gaining IS-BAO (International Standard - Business Aircraft Operators) certification, introduced in 2002 (after two years of development testing) and prefer to use FBO or BAHA that have, or are working towards, IS-BAH, as this gives them confidence that their aircraft will be handled by an organization that has invested in their staff and the industry standards for training and SMS.

Not only does IS-BAH offer FBO/BAHA the highest safety culture possible for their staff and clients, as with the Safety 1st training program, it may well help pay for itself through reduced insurance premiums, there is anecdotal evidence that underwriters are taking a positive view on IS-BAH and the reduction of risks it brings to ramp operations.

The National Air Transportation Association’s (NATA) successful Safety 1st Ground Audit program was incorporated into the new standard, setting a new and higher standard for Safety Management Systems and best practices throughout the business aviation ground support industry.

Day-to-day operation of the standard and audit processes is managed by IBAC.

Certification will also bring with it an added marketing bonus when it comes to promoting your business to aircraft operators.

The IBAC International Standards Support Services Affiliate (I3SA) Program has been established to improve the quality of support services provided by organizations assisting operators in implementing the IS-BAH.

Any reader who would like to discuss this topic further can contact the author at SafeRamps@GlobalFBOconsult.me

See related article by this author on Globalair.com “First in Africa – Small Investment, Large Results” 31 January 2017

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Fixed Based Operators (FBO) | Joe McDermott

Understanding RCAM

by Lydia Wiff 15. February 2017 09:00
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In July, the Federal Aviation Administration (FAA) released a draft Advisory Circular (AC) entitled Airport Field Condition Assessments and Winter Operations Safety.  Essentially, this draft AC cancels the previous AC 150/5200-30C, Airport Winter Safety and Operations from December of 2008. 

Changing ACs, regulations, etc., is no small task – this AC changes how conditions on the airfield are reported.  RCAM, or Runway Condition Assessment Matrix, is going to look a lot different than what pilots are expecting to see.  Today’s article will strive to shed some light on a new reporting system as we are now well into winter.

The Old Way

You might remember way back in your Private Pilot Ground School learning about Braking Action Reports (BARs for today’s purposes).  BARs included two correlating pieces of information:

1)      Pilot Weather Reports (PIREPS) – Pilots are expected to provide a PIREP to Air Traffic Control (ATC) if the braking action is less than “Good” (more on what consists of “Good” later).

2)      Runway Friction Mu Reports – These are often referred to as “Mu values”.  These numbers are typically shown as whole in the United Sates (U.S.) and as decimal values round to two places in the International Civil Aviation Organization (ICAO).

a.      0 would be the lowest friction value, while 100 is the highest. 

b.      These values are given as an average of every third of the runway to generate a Mu value for the entire runway.  

c.       In addition to Mu values, there will be a contaminant conditions for each corresponding section of the runway (e.g., snow, slush, deicing chemicals, etc.). 

Lastly, pilots (at least in General Aviation) tend to pay attention to the words used to describe the runway conditions.  The following words have an attached meaning (AC91-79, Appendix 1):

a.      Good – the braking deceleration is normal for the effort applied and directional control is normal (Mu is 40 and above).

b.      Medium (Fair) – the braking deceleration is not as good and is more noticeable; directional control may be less (Mu is 35 to 30).

c.       Poor – braking is significantly reduced, as well as the potential for hydroplaning; directional control may be significantly reduced (Mu is 25 to 21).

d.      Nil – braking is minimal to nonexistent and directional control ability is uncertain (Mu of 20 and below).

As pilots, we most likely just were given a word or ATC telling us “Braking action is Fair”.  We did not often know the background behind what these values stand for.  Hopefully, this informs the average user a little more.  Next, I will discuss what the new system entails and how that is different for pilots.

The New Way

As of October 1st, 2016, under RCAM the braking action codes remain mostly the same with words such as “Good”, “Poor”, etc.  The biggest change is the replacement of “Fair” with “Medium” – they mean the same thing, however, the FAA decided to simply change the word.  The graphic below shows visually what the airport will use versus what a pilot will use.


As you will notice, the pilot still uses the word descriptors, while the airport is now using a numbering system that ranges from zero to six.  Zero is the “Nil” end while six is “Good”.  Zero can also be thought of as ice and six as completely clear.

It is important to note that the Runway Condition Codes (RCCs) are given for every third of the runway.  An example would be the following: 4/3/3.  Each third represents the parts of the runway: Touchdown, Midpoint, and Rollout.  These RCCs correlate with the Mu values that are measured by the friction tester, if the airport employs one. These RCCs helps a pilot to properly visualize what conditions are affecting what points of the runway.

As the descriptors of the conditions are somewhat lengthy, I will not go into detail in this post to describe each condition.  However, I would recommend that all pilots reference the FAA’s website as well as their home airport’s Notice to Airmen (NOTAMs) in addition to any field condition reports that might be issued as well.

Closing Thoughts

Hopefully this blog has shed some light on an interesting and somewhat confusing new regulation.  While pilots may see some slightly new wording in reports from airports, this rule affects many commercial airports especially when it comes to major snow events.  As this is the first winter that the new rule has been affect, it remains to be seen how airports are handling this new regulation.  Hopefully, it will be a safe winter season for all the hard-working Airport Operations personnel!

Have a comment on experiencing RCAM at your local airport?  Leave it below!

 

Images courtesy of Google.com.

 

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When you "assume"

by David Wyndham 3. February 2017 15:00
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The old saying goes that when you assume something it makes an "ass" out of "u" and "me." That's been demonstrated numerous times. The word assumption does have several definitions. The one in reference above is listed first below. I want to discuss the second definition in relation to the first.

1. a thing that is accepted as true or as certain to happen, without proof

2. the action of taking or beginning to take power or responsibility

The key term to the first definition is "without proof." If we invoke definition two, and take responsibility for defining and offering a level of proof to the assumption, then we have a powerful tool for communication and negotiation. 

In a talk given by James Lara of Greystone Partners at the 2016 NBAA annual meeting, he was discussing the difficulties many of us find in developing a budget. Many times we get into struggles or face the limits of "do more with less." James stated that if you agree on the assumptions to use in developing the budget, the rest becomes straightforward.  With respect to the budget, first agree what the assumptions are. How many trips or hours are needed this year by how many passengers? How many days on the road are needed? What standards do we train to and what are the crew-rest and time-off policies? If fuel cost, salaries, insurance levels, and other costs are mostly a given, then all that remains is the calculation of the total costs to deliver the transportation, safety, and service levels we have just agreed to (assume). If there is a disagreement on the numbers, refer back to the agreed-to assumption that leads to the number. 

This applies to all sorts of communications and relationships. What are the assumptions we are dealing with and are we in agreement? We had this recently at work. We were discussing an issue with one of our software products. When several of us got on a call to discus it, we first had to decide whether it was a problem with the software feature not working correct or whether we didn't communicate to folks what the feature was supposed to do. Once we decided that the issue was the feature didn't do what it was supposed to do, we then set out to reconfigure the feature. And yes, to communicate with our customers better is needed, too. We avoided a lot of wasted time by agreeing what the assumption was in relation to the software before we went down the path to fix it.

This also helps in our relations with other people. With one client, we were tasked to look at their staffing. One area where the assumptions were quite different was in respect to the "free time" when the pilots were on the road. If the aircraft owner went to Barbados for a week, the plane and crew stayed down there as well. On one hand, it sounds good to have a few days in Barbados.  But the pilots are not with family. They are not able to be totally free with their time in case the aircraft owner changes plans. So is this assumed to be work or time off? 

If you are creating a new position or moving someone into a new position, you need to make sure they understand what the job duties and performance criteria are. Helping a client select an aircraft? Do they assume a single-engine turboprop is a safe and cost-effective alternative or are they nervous fliers who want two engines and two pilots at all times? 

Too often we assume the other person has the same assumptions, goals, and reasons for being as we do. When we run into resistance, we can be taken aback to find that is not always true. Checking that your assumptions are in alignment with the other person can avoid many issues and miscommunications. Make it your responsibility to check in with the other person to at least agree on what the baseline considerations are. It's time well spent.

 

 

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Aircraft Sales | David Wyndham | Flight Department



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