“Be polite; write diplomatically; even in a declaration of war [or dealing with the FAA] one observes the rules of politeness.”– Otto von Bismarck, conservative Prussian
When it comes to minimizing, or better yet avoiding penalties or fines from the FAA, sometimes the best way to communicate your point is to say nothing at all.
Riddle me this: What does a baseball home plate umpire have in common with your local FAA inspector?
They both have a strict set of approved written rules, yet each have the authority to call balls and strikes as they see them – even if their interpretation of the “strike zone” differs from the published rule. As an MLB batter you can either live with the calls or complain and get tossed from the game. As an aircraft technician, you try to comply with the rules the best you possibly can, but that compliance is unfortunately subject to interpretation. And quite often, while complaints about inconstancies won’t get you tossed, they can earn you a healthy fine.
Of course as a professional aircraft technician, your number one goal is to ensure safety even if that means going outside the regulation. But we’ll save that subject for another story.
Right now we want to concentrate on how you can ensure safety while avoiding any misunderstandings that can lead to FAA penalties and/or fines. To get first hand information on this difficult subject, we contacted Sarah MacLeod, executive director of the Aeronautical Repair Station Association (ARSA). Unfortunately, Ms. MacLeod and her team deal with situations like this on a daily basis.
Her first tip is to know and understand the procedures and rules of compliance better than your FAA inspector.
“If you actually know the rules and apply the guidance with a focus on aviation safety, the path to compliance is seldom rocky,” she stated. “However, if a certificate holder does not know the difference between complying with a regulation and ‘best practices’ or a ‘good idea’ or ‘local inspector preference’ – bad decisions are made.”
“One bad decision is becoming non-compliant, or even worse in my mind, not knowing when you are in compliance,” Ms. MacLeod said. “Both ills can be cured by knowledge and that comes with reading and understanding the regulations and guidance materials.”
While some understanding of regulations can be gained through discussions with business peers or your FAA representative, Ms. MacLeod cautioned that this kind of education must be taken with a grain of salt. “Don’t be fooled into thinking this is knowledge. You may only be gaining another person’s perspective or opinion,” she said. “Regulations are laws. They can be ‘interpreted’ by the agency, but it is not the final arbiter of compliance – federal courts play that role.”
“Today, you have to be every bit as smart about the rules as your FAA inspector,” stated Richard Simmons, accountable manager for TPS Aerospace. “There is a lot of interpretation in the field. If there’s a problem you have to be able to point to the written rule and show how your processes meet it.”
Ms. MacLeod said that the best first line of compliance is to write a detailed procedural manual and then train everyone in your company to follow those “rules.”
“Failure to follow written procedures – starting with the regulations, is the number one finding we have in every audit,” she explained. “We find that shops often write procedures and then continually rewrite those procedures without taking the time to train the technicians to follow those new directions.”
“The fault for creation of mismanaged policies, processes and procedures can be laid at both the industry’s and government’s doorsteps,” Ms. MacLeod said. “However the government is the one that can fine companies and individuals.”
“Paper (process documentation) and training and the most important products a company can produce. You have to create a procedural manual for your entire operation and then train to it,” Simmons said. “That is probably the number one trap a shop will fall into. They can’t or don’t want to invest the time and money to develop the procedures and provide adequate training for their people.”
Best Laid Plans…
Of course, always remember that you are dealing with the FAA – think umpire – so even following the rules to the letter doesn’t guarantee compliance. You must have documentation and more importantly know why the documentation says what it does.
“One very important point is that it doesn’t matter if the agency ‘approved’ something – it can change its mind and that ‘approval’ does not mean compliance,” Ms. MacLeod said. “I cannot tell you how many certificate holders say, ‘But the FAA approved it.’ Unfortunately, my response is always: ‘So what. The agency doesn’t have to be right, you do.’”
Ms. MacLeod explained that it is the certificate holder’s responsibility to comply and the agency’s responsibility to oversee that compliance.
“If the agency’s representative cannot cite a regulation, or appropriate guidance material that is not contrary to the regulation, there is no ‘requirement,’” she said. “Likewise, if
a certificate holder does not know why it put something in a manual or ‘thought’ it complied with a section of the regulation but cannot explain how or why it complies, then a non- compliance would be real.”
Here again is an area where continual training is extremely valuable to ensuring correct “compliance.”
“Educate, educate, educate and encourage open and honest discussions of the regulations – the actual language of the regulations within your company,” Ms. MacLeod said. “Individual technicians have tremendous responsibility and power, but without the proper knowledge and understanding of the regulations and the technical requirements driven by those standards, the power is wasted.”
Because your technicians on the shop floor are often the first people your FAA inspector will talk to during a visit, make sure the technicians are prepared and understand that it’s perfectly fine and acceptable to answer any question with three simple words: “I don’t know.”
“You can have great processes and documentation, but if your technicians don’t know why its written the way it is, it’s of little use during an audit,” Simmons said. “Instruct your technicians that if an FAA inspector ever asks them a question, make damn sure they know the right answer. If they’re not totally sure, then just say they don’t know and to go get their lead. You won’t get fined for that. It’s when you try and make up an answer that you get in trouble.”
“You have to know the rules, you have to know your rights and you have to be able to exercise your most basic liberty,” Ms. MacLeod said. “Keep your mouth shut.”
Her guidance in these situations is to ask the FAA representative to provide their concerns in writing so all the information required can be provided in a professional manner rather than off-the-cuff and under pressure.
I’m Okay. You’re Okay…Maybe
The fact is, sooner or later your facility is going to face an FAA audit of one form or another so it’s best practice to be prepared.
“Constantly perform personal and professional skills audits of regulations, policies and procedures,” Ms. MacLeod said. “Failure of companies to train their technical staff has created unintentional questions and consternations. Some have even led to fines and certificate revocations. Almost all started with someone answering the agency’s questions incorrectly.”
“A lot of it depends on your relationship with your inspector,” Simmons said. “The inspector I have now is very easy to communicate with. I can call him and discuss any issues up front before it becomes a problem. That hasn’t been the case with others we’ve had here.” “Of course good processes and documentation enable you to say ‘no’ to the FAA,” he said. “But you have to be 100 percent correct in your position. You have to have everything exactly right to show compliance for this situation. Bare-in- mind though, if you do argue with the FAA you can still get popped on something else. They can always find something.” No matter how big you are or how right you are, nobody wants to go toe-to-toe with the FAA. But, like many situations in life and business, if you get called to the carpet, you immediately assume you are guilty.
“My positive experiences are that if a matter can be nipped in the bud early, before tempers and misinformation fly, it can be resolved without any penalty or legal action,” Ms. MacLeod explained. “But once the matter has ‘gone south,’ it is very difficult to recover.”
She said that the most egregious examples she and her ARSA staff sees are of small businesses that submit to demand after demand after demand and still cannot satisfy their local inspector.
“By the time the company contacts the association (ARSA), they have no money and the hole they dug for themselves by capitulation becomes so deep it’s impossible to refill,” she said. “The bottom line is capitulating to a government demand is taken as guilt of no-compliance even when the agency doesn’t cite any regulations.”
When faced with this situation, Ms. MacLeod suggests certificate holders politely, but firmly, ask for the information to be sent in written form and responded to in written form. The less you say the better.
But no matter what pressure your FAA representative puts on you, even if you have agreed to do an action, do not admit you did anything wrong – even in casual conversation – just explain how you fixed “it” and steps you’ve taken to keep whatever “it” was from happening again. She provided this example of a polite communiqué that admits no wrongdoing on your part:
“I’m sorry we did not communicate clearly today. The questions you asked were not answered fully during the time we had. We have attached the complete work order associated with the single-page document you copied while you were here. We have highlighted the information that shows compliance with section 43.13. In the future, we will be sure to write your concerns down as you express them so proper information can be provided in an a timely manner.”
You Are Not Alone…
Solo navigation of a course in and around anything pertaining to FAA compliance is not for the faint of heart. ARSA member companies have the added benefit of accessing a host of online training courses as well as being able to talk to the organization’s regulatory compliance experts who are there to provide information on regulations and guidance materials to address a variety of hypothetical situations.
ARSA members and non-member companies also have the option to contact Ms. MacLeod’s law firm, Obadal, Filler, MacLeod & Klien, to obtain professional, confidential and privileged compliance and legislative services, as well as customized training programs.
“Obviously, if you get in trouble and have a few dollars, the law firm can help during actual audits, in answering (FAA) letters of investigation or in determining compliance under specific facts and circumstances,” she said. “My best advice is again, know the rules and put the right processes, documentation and training in place well before you ever get a visit from the FAA.”