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Blacklisting:Toward a More Balanced Approach
Kenneth P. Quinn, Esq.Partner
Pillsbury Winthrop Shaw Pittman, [email protected]
Worldwide Conference on Aviation Safety, Security and the Environment
Sep. 16, 2007
European Blacklisting
Common criteria focus mainly on: results of checks carried out in
European airports use of poorly maintained,
antiquated or obsolete aircraft inability of airlines involved to
rectify shortcomings identified during the inspections
inability or unwillingness of authorities to properly implement and enforce safety standards on aircraft
List updated as often as necessary and at least every 3 months
European Blacklisting
A national blacklist avoids discrepancies between Member State flight bans and restrictions
Effective at pointing out high risk airlines Chance of EU-blacklisted airline involvement in accident 50
times greater than for all other airlines (more than 100 times greater than EU airlines)
Criteria for being included on blacklist not as clear as they need to be, nor is procedure for removal
Inequity in blanket blacklisting, e.g. entire country or airline Only 10 working days to respond to EC when notified of the
decision to list that country in the blacklist
Disadvantages
Advantages
Other Blacklisting Considerations
Naming and Shaming Device Efforts on safety should have a direct and positive impact
– Blacklisting is a political response, not the solution to further improving airline safety
Socio-economic factors often at the root of the problem for countries with banned air carriers
– In 2006, 18.5% of fatal airliner accidents happened in Africa, which accounts for 3% of all world aircraft departures.
– Need to drive improvements in safety by using measures that promote growth
Find root cause –pilot shortage and finding major issues While EU has the right to control which carriers fly within its
own airspace, the decision to “name and shame” carriers operating exclusively outside of the EU is unfair and ineffective
Other Blacklisting Considerations
Injury extends beyond banned air carriers Affects trade, tourism, and the
local citizens ability to travel
– Air transport in Africa brings 470,000 jobs and $11.3 billion to African GDP
– Ends up just being a trade sanction that harms people rather than getting the desired effect from the airlines
Tit-for-tat reprisals lead to even more injury
Audit Programs- A Better Solution
Worldwide auditing prompts action to fix infrastructure
Better able to boost safety than a “name and shame” approach that only bans airlines Tackle the root
causes of safety concerns
ICAO and USOAP
Unified strategy to resolve safety-related deficiencies ICAO SARPs are the cornerstone on which international
aviation rests Focuses on states with compliance shortcomings, with
objective of developing corrective action plan Comprised of three phases: (1) pre-audit; (2) on-site; and (3)
post-audit
Better transparency Mandatory posting of audit summaries in March 2008 is step
in the right direction States can add complementary data to help evaluate the
level of safety in their country Facilitates cooperation among state CAAs
IATA and Operational Safety Audit
While ICAO audit process focuses on states, IATA safety audit focus on individual airlines
IATA membership based on successful completion of IOSA process; non-members may participate in IOSA
Involves adequate notice of deficiencies, extensive assistance, and time to correct prior to any adverse action
First global benchmark for airline safety management with internationally recognized and accepted evaluation system
Better transparency Standards available to anyone, including non-members March 2006 IATA and ICAO agreed to share information from
their respective audit programs
Not overreaching like the EU’s blacklist; stated policy of FAA is to deal primarily with foreign CAAs rather than with individual airlines
Involves universally accepted auditing standards; determines whether foreign CAAs meet ICAO safety standards, not FAA regulations
CAAs given a reasonable period of time to correct deficiencies to try and avert damaging consequences prior to decision to ban operations in the US Assistance in exploring means to rectify shortcomings built
directly into program
To date, FAA has publicly disclosed the results of 87 completed CAA assessments under IASA
FAA and Int’l Aviation Safety Assessment
FAA’s IASA looks to whether foreign CAAs provide adequate safety oversight, based on the following factors: enabling legislation guaranteeing minimum ICAO
requirements current regulations that meet ICAO requirements procedures to carry out regulations carrier certification, routine inspection, and surveillance; and adequate organizational and personnel resources
Countries that do not meet above criteria classified as Category 2, subjecting their carriers to heightened FAA surveillance in the US Expansion or changes in services by such carriers generally
not permitted while in Category 2
FAA and Int’l Aviation Safety Assessment
Process:
1. Application for foreign air carrier permit filed with DOT
2. DOT notifies FAA of application, requesting FAA evaluation of foreign CAA’s ability to meet ICAO standards
If no IASA assessment of foreign CAA in place, FAA international team visits foreign CAA for assessment
If assessment reveals non-compliance with ICAO standards, FAA formally requests consultations with the CAA for detailed discussion of findings and timely resolution
3. Upon successful assessment, FAA forwards positive recommendation to DOT, and foreign air carrier receives permit authority and Part 129 Operations Specifications
FAA and Int’l Aviation Safety Assessment
Countries currently designated as Category 2 by FAA:
FAA and Int’l Aviation Safety Assessment
BangladeshBelizeBulgariaCongoGambiaGhanaGuyanaHaitiHondurasIndonesiaKiribatiNauru
NicaraguaParaguaySerbia & MontenegroSwazilandUkraineUruguayZimbabwe
Global Aviation Safety and the Future
“I would like to point out right now that, from where we sit, we do not see blacklists of carriers, banned carrier lists, as the answer. Consistent operator commitment to safety standards and action by government agencies with the wherewithal to certify and oversee operations is the answer.”
-FAA Administrator Marion C. Blakely
“I would like to point out right now that, from where we sit, we do not see blacklists of carriers, banned carrier lists, as the answer. Consistent operator commitment to safety standards and action by government agencies with the wherewithal to certify and oversee operations is the answer.”
-Former FAA Administrator Marion C. Blakely
QUESTIONS?
Kenneth P. Quinn, Esq.Partner
Pillsbury Winthrop Shaw Pittman, LLP
(202) [email protected]
