Aviation Safety - Page 7 Aviation Articles

Arguing Aggravating And Mitigating Circumstances In Civil Penalty Cases

When the FAA assesses a civil penalty for regulatory violations, it is required to take into account both aggravating and mitigating circumstances when it calculates the penalty. Typically the FAA focuses on aggravating circumstances to support assessment of a higher civil penalty. On the other hand, respondents argue that mitigating circumstances are present that justify a lower civil penalty. But if the case ends up going to hearing, it then becomes the administrative law judge's ("ALJ") responsibility to decide (1) whether any aggravating or mitigating circumstances are present, and (2) how/whether those circumstances may impact the civil penalty assessed by the FAA.FAA

As an initial matter, the FAA has the burden of justifying the amount of the civil penalty. The ALJ must then look at the totality of the circumstances surrounding the violation to determine whether the civil penalty is sufficient to serve as a deterrent to both the respondent and the industry as a whole. As guidance, the ALJ may consider the following factors the FAA is supposed to consider per FAA Order 2150.3C FAA Compliance and Enforcement Program:

  • The nature of the violation;

  • Whether the violation was inadvertent or not deliberate. This is typically a mitigating factor, and the absence of inadvertence isn't automatically an aggravating factor;

  • If the respondent is a certificate holder, the certificate holder's level of experience;

  • The attitude or "compliance disposition" of the respondent;

  • The degree of hazard posed by the violation;

  • Any action taken by an employer or other authority;

  • The respondent's use of a certificate;

  • The respondent's violation history, if any. This is only an aggravating factor. A violation-free history is expected and is not a mitigating factor;

  • Decisional law;

  • The respondent's financial ability to absorb a sanction;

  • Consistency of sanction;

  • Whether the respondent reported the violation voluntarily; and

  • What, if any, corrective action the respondent may have taken as a result of the violation.

If you are facing a proposed civil penalty or appealing an assessed civil penalty, you should definitely determine whether any of the circumstances of your situation support any of these mitigating factors and then argue those facts to the FAA or ALJ to try and reduce the civil penalty. You can find read a good example of how this works in a recent case - In re Star Helicopters.

On the other hand, if any of your circumstances could be characterized as aggravating factors, you will also want to identify those facts, because you know the FAA will. You can then determine how best to argue against and minimize the impact those aggravating circumstances may have on the civil penalty.

Your Airplane Emergency Kit

One of the most important things for a pilot to be is PREPARED. No matter what circumstances arise during a flight, a pilot has to be ready to respond quickly and efficiently. A big part of being prepared is having the tools that you need with you at all times. In this article, I would like to look at what items every pilot should keep in an emergency kit in their aircraft. Depending on the purpose of your flight, a more robust emergency kit may be required (for example, flying in the mountains or in freezing climates) however, most fair weather flying only requires a few essentials to cover emergencies that may come up.

There are several airplane emergency kits available online, but there are some downsides to purchasing them. First, they can be very expensive. They charge a premium for the convenience of having it all prepackaged together, sometimes up to several hundreds of dollars. Another downside to purchasing a kit online is that some items will expire, and you will be forced to tear it apart the kit to find and replace the expired product.

The solution to this is to analyze the type of flying you intend to do and plan for any emergencies that could arise based on that. l am basing this list off of an individual flying a small personal aircraft, as the emergency kit for a commercial flight may look quite different. Having a personalized survival kit that contains items you know how to use could make all the difference in a critical situation.

The most major piece of equipment that you want to make sure is with you and functioning properly is the ELT (emergency locator transmitter.) Having one of these significantly increases your chances of being found and rescued if you have an unexpected landing in a secluded area. Check on your ELT to ensure it’s functioning properly and is ready when you need it.

A few other items that are worth including in your emergency kit:

Medical Supplies
This includes bandages, medical tape, ointments, medications, and any instructions for use for each product. It is equally as important to have medical items as it is to have a basic understanding of how to use it. Review instructions on each product and practice using them if needed. 

Food and Water

Depending on where you're flying, you may be secluded enough that it takes quite some time for rescue crews to reach you. In this case, it is important to have food and water rations that will last you at least a couple days. Beyond this, it is a good idea to include a water purification device in case rations run out. 

General Survival Gear

You can get a good idea of what survival gear you might need by visiting an outdoors store or searching the web for what other pilots are using. Generally, you'll want items for both sheltering yourself and signaling for help. Sheltering items include blankets, a canopy, duct tape, rope, a knife, insect repellant, and sun protection. Signaling items include flares, whistles, mirrors, and fire sticks. 

All of these can be packed into a backpack or duffle bag and easily carried with you. What’s in your airplane emergency kit? Any items you hadn’t thought about including but will now? Let me know in the comments!

Thoughts on Crew Resource Management (CRM)

Crew Resource Management (CRM) is defined by the Federal Aviation Administration as, "the effective use of all available resources: human resources, hardware, and information." The history of CRM comes from NASA research that took place in the late 1970s. NASA focused its research solely on the human error element involved in aircraft accidents with multiple crews. During this time of research, much of the focus of CRM was on the pilot/copilot relationship. It was discovered that select airline captains thought very little of their first officers. In turn, first officers felt that they could not challenge their captain when they didn’t agree with his or her actions. They felt that it was disrespectful to challenge them as captains were the boss in the cockpit. The purpose of the research at that time was to "gain an environment of equal respect, teamwork and cooperation to safely accomplish the mission of the flight." The most recent CRM model has evolved into "teaching pilots risk management strategies, focusing on workload management, recognizing hazardous attitudes or patterns, maintaining situational awareness, and communicating effectively to operate efficiently and safely in all aspects of flight." CRM is an important aspect to any flight training department and is critical for an airline pilot’s career.

CRM covers many different concepts including decision-making and risk management. The decision-making side of CRM covers pilots that are faced with an in-flight decision. Pilots are trained to use the knowledge and technology they have available to them when they are faced to make a decision during flight. CRM includes not only pilots but other crew members, flight attendants, ATC, weather reports, and maintenance workers. Pilots can utilize these people and tools to help them make their in-flight decision. Risk management involves preventing risks and how to manage them appropriately if they do arise. Risks include not only environmental such as weather or operational policies but pilot’s personal risks. Pilots can have personal risks such as fatigue, illness or stress that they are aware of but not always tell their crew members about. Factors such as aircraft weight and runway conditions can also influence risks. Two flight cases below highlight the importance of CRM and why proper training is crucial before the flight crew steps in the cockpit.

Korean Air Cargo Flight 8509 is a perfect case study into what tragedies can happen when there is a breakdown of CRM. The Boeing 747 was flown by a crew of 4 out of London Stansted Airport on December 22, 1999. Maintenance personnel warned the Flight Engineer that the captain’s Attitude Director Indicator (ADI, or artificial horizon) was unreliable during a roll before they boarded the aircraft. It was dark outside at the time of takeoff, so the captain was flying entirely by instruments. The captain began a sharp left turn after takeoff, which was not reflected on his inoperable ADI. The CRM breakdown in this instance was that the co-pilot’s ADI was functioning normally but he remained silent as to not challenge the captain. The Flight Engineer began yelling "Bank!" repeatedly, and an alarm rang out warning of the error, but the pilot continued his sharp turn until the left wing dragged the ground and the plane smacked the ground at high speed and 90 degrees of left bank. All 4 crew onboard perished in the cash.

Southwest Airlines Flight 1248 is another example of where CRM training is crucial. On December 8, 2005 a Boeing 737-7H4 ran off the departure end of runway 31 center just after landing at Chicago Midway Airport. The aircraft rolled through the blast pad fencing and the airport’s perimeter fence where it finally came to a stop after striking a vehicle, which killed a child that was in the vehicle. The cause of the accident was the pilots’ failure to use available reverse thrust in a timely manner to safely slow or stop the airplane after landing. This failure occurred because the pilots’ first experience and lack of familiarity with the airplane’s autobrake system distracted them from thrust reverser during the challenging landing. This case shows that not only were the pilots at fault for the accident but Southwest Airlines as a company. The company failed to train the pilots and assure that they were clear on the operating procedures for the aircraft they were flying.

Between 60-80% of aviation accidents are caused by human error, and a large portion of that are specifically caused by poor Crew Resource Management. Millions of dollars have been invested into CRM training at airlines, flight schools, and other businesses that operate aircraft. Continual CRM training that focuses on teaching pilots and aircraft crew error avoidance, early detection of errors, and minimizing consequences resulting from CRM errors generally has a positive outcome and desired behavioral change. However, it can be difficult to evaluate the impact of CRM training as it is hard to quantify the concept of accidents avoided. Thus, it was determined that more research into the long-term effects of CRM training needs to be conducted in the coming years.

Companies are wanting to dig deeper into how they can better equip and train their employees to use CRM tactics. The FAA has an Advisor Circular (AC) published specifically for crew resource management training. In addition to the certain essential that are universal to CRM, the Advisory Circular also lists effective CRM characteristics which include: CRM is a comprehensive system of applying human factors concepts to improve crew performance, CRM embraces all operational personnel, CRM can be blended in all forms of aircrew training, CRM concentrates on crewmembers’ attitudes and behaviors and their impact on safety, CRM uses the crew as a unit of training, CRM is training that requires the active participation of all crewmembers. It provides an opportunity for individuals and crews to examine their own behavior, and to make decisions on how to improve cockpit teamwork. The number one goal in aviation is safety. Where CRM characteristics are compromised or left out, there’s room for error to slip in which can lead to incidents or accidents that could cause fatalities. Companies in the aviation industry need to ensure that they are taking all of the right steps in training their crews before they are put on the aircraft with souls on board.

When Is An Aircraft "Destroyed" Versus "Repairable"?

Unfortunately, the terms "destroyed" and "repairable" are not defined anywhere in the regulations. But, as you might expect, the FAA has a policy/opinion about what these terms mean. In fact, the FAA has issued Order 8100.19, Destroyed and Scrapped Aircraft which spells out what these terms mean and how they are to be applied by FAA inspectors. If an aircraft is capable of being repaired and returned to service after it was unserviceable due to wear and tear, damage, or corrosion then it is "repairable." But this means that when the repair is complete the aircraft to returned to service in "its original (or properly altered) condition that conforms to its type design."

The FAA clarifies further that an aircraft is only eligible for repair if it has at least one primary structure around which a repair can be performed. According to the FAA, it "considers an aircraft’s primary structure to be the structure that carries flight, ground, or pressurization loads, and whose failure would reduce the structural integrity of the aircraft." If only some, but not all, of the major structures of an aircraft are replaced, then that would still be considered a repair.

However, if all of an aircraft's primary structures must be replaced then the FAA does not consider the aircraft to be "repairable." Rather, in that situation the aircraft is being "replaced" after being "destroyed." And if the identification plate from the original aircraft was then placed on the "destroyed" aircraft that would violate 14 CFR § 45.13(e) ("No person may install an identification plate removed in accordance with paragraph (d)(2) of this section on any aircraft, aircraft engine, propeller, propeller blade, or propeller hub other than the one from which it was removed.”)

In order to comply with Section 45.13(e), the primary structure must be identifiable and traceable to the particular aircraft and its identification plate. As an example, if a heavily damaged aircraft is repaired by performing many major repairs on its fuselage and replacing all other primary structures that may be destroyed such as the wings and the empennage, that aircraft would not be considered destroyed because the fuselage is repairable. But if the fuselage of that aircraft also needed to be replaced along with the other primary structures, then the aircraft would be considered destroyed.

The Order also provides the following examples for use in determining if an aircraft is destroyed:

  1. All primary structures of an airplane or glider, including the fuselage, all wings, and empennage are beyond repair.

  2. The fuselage and tail boom of a rotorcraft are beyond repair.

  3. Only the aircraft identification plate is reusable.

How is this determination made by FAA inspectors? Well, according to the Order, "FAA accident investigators will apply their specialized knowledge and expertise and follow the guidelines in this order when evaluating aircraft wreckage to determine whether an aircraft is repairable or should be declared destroyed."

Fortunately an aircraft owner can dispute a determination that an aircraft is destroyed by providing the appropriate FAA FSDO or ACO with a repair process that explains how the damaged aircraft can be repaired provided that at least one primary structure of the aircraft is capable of being repaired rather than requiring replacement. If you are faced with a situation where it is unclear whether an aircraft has been "destroyed" or is still "repairable", you will definitely want to consult the Order, as well as the aircaft's maintenance manual.

Runway Incursions: What's the Big Deal?

A runway incursion is defined by the FAA as, "Any occurrence at an aerodrome involving the incorrect presence of an aircraft, vehicle or person on the protected area of a surface designated for the landing and takeoff of aircraft." There are four categories of runway incursions, Categories A-D. Category A being the most severe and Category D being the least severe. Category A is classified as an "incident in which separation decreases and participants take extreme action to narrowly avoid a collision." An accident can be the result of a runway incursion, and therefore exceeds the categories described.

The FAA estimates that approximately three runway incursions happen every day at towered airports in the United States. Thus, the number of unreported incursions at non towered airports must be much larger. Although a runway incursion is by definition a near miss at the worst, they are often a contributing cause in serious aircraft accidents. An accident that perfectly illustrates the dangers of runway incursions is the 1996 collision of United Express flight 5925 and a Beechcraft King Air 90A in Quincy, Illinois. A miscommunication between the landing Beechcraft, the departing King Air, and a third taxing aircraft turned deadly when the King Air failed to look for traffic and the Beechcraft wrongly assumed a radio transmission confirmed they were okay to land. Although the airport was not towered, the presence of both aircraft on intersecting runways was extremely dangerous and lead to a collision at the intersection. A total of 12 people lost their lives in that accident that could have been easily avoided.

Another infamous accident involving a runway incursion is the Russian Aeroflot Flight 3352 that took place in 1984. In short, the ground Air Traffic Controller fell asleep after he authorized several maintenance vehicles to enter the runway. A commercial aircraft carrying 170 passengers came to land at the airport, and the approach controller, oblivious to the maintenance crew on the runway, cleared them to land. To make matters worse, visibility was extremely low and the maintenance trucks did not have their rotating beacons illuminated. The commercial aircraft collided with the vehicles, resulting in 178 fatalities. In this example, the accident investigators placed the majority of the blame on the Air Traffic Controller, but there were mistakes made by all parties involved.

The airport environment is a complex operation with hundreds of moving parts. Pilots, air traffic controllers, and airport designers have to understand the hazards that come with miscommunications and poorly designed airport layouts. It only takes one moment of confusion for a runway incursion to happen, which could be deadly.

The FAA has a record of 1747 total runway incursions happening in the Fiscal Year 2017. There are several reasons that runway incursions occur. One of the most prevalent ones is miscommunication or a total lack of any communication. Many times, pilots and air traffic controllers get "stepped on" or, talked over on the radio frequency. It is highly critical that pilots repeat back their instructions to confirm with the controllers that they heard them correctly and that the directions were for their aircraft and not another. As in the above case study, although there was not a tower at the airport, the landing aircraft assumed that the aircraft announcing they would be holding short was the only one holding short. There was a misunderstanding in this case because one pilot’s radio transmission got covered up by the other aircraft holding short making the pilot of the landing aircraft assume that there was only one aircraft and they were holding short. Other common types of runway incursions include incorrect entry or vacating of an aircraft or vehicle onto the runway protection area, incorrect runway/taxiway crossing, incorrect spacing between departing and arriving aircraft, and landing or taking off without air traffic control clearance.

According the the FAA, approximately 65 percent of all runway incursions are caused by pilots. Detailed investigations of runway incursions over the past 10 years have identified three major areas contributing to these events including failure to comply with air traffic control instructions, lack of airport familiarity, nonconformance with standard operating procedures. Clear, concise, and effective pilot/controller communication is paramount to safe airport surface operations. This is something that is often stressed during initial and recurrent pilot training, but evidently the information does not always stick in the pilots’ minds.

Air traffic control instructions must be fully understood and complied with. Air traffic controllers are in place to assist pilots and want to help when there is confusion but many pilots don’t ask for the help. They are caught up in other tasks such as checklists, taxi directions, and non-essential chatter with the copilot. Pilots are to taxi with their heads-up and eyes outside to ensure they are aware of all aircraft and airport vehicles.

Major factors that increase the risk of runway confusion and can lead to a wrong runway departure include airport complexity, close proximity of runway thresholds, joint use of a runway as a taxiway (FAA, 2017). During the summer construction time, many airports will close runways or taxiways to resurface them or replace them. If a taxiway is closed, this can force aircraft to use runways as a means of getting to another open taxiway. It can also force the aircraft to back taxi on the runway they are departing from.

Thorough planning is essential for safe taxi operations. Aircraft accidents are more likely to happen on the ground than in the air because there are so many moving parts on the airfield. Pilots need to utilize the following services/tools in order to ensure safe airport surface movement: Notices to Airmen (NOTAMS), Automated Terminal Information Service (ATIS), Airport/Facility Directory (A/FD), and recognizing Hot Spots. Although using these pilot tools will not end all runway incursions, they will lower the risks if all pilots are equipped with the proper and current information.

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