Order Code RL34467
U.S. Airline Industry:
Issues and Role of Congress
April 30, 2008
John W. Fischer
Specialist in Transportation Policy
Resources, Science, and Industry Division
Bart Elias
Specialist in Aviation Policy
Resources, Science, and Industry Division
Robert S. Kirk
Specialist in Transportation Policy
Resources, Science, and Industry Division
U.S. Airline Industry:
Issues and Role of Congress
Summary
Mergers, airline bankruptcies, aircraft safety and maintenance concerns,
extensive flight delays and cancellations, $100-plus-per-barrel oil prices, and a litany
of other issues define congressional interest in the airline industry at present.
Congress does not play a day-to-day role in any of these issues. Most ongoing
oversight of the industry, to the extent that it does occur, takes place within the
executive branch. Congress periodically addresses airline issues through legislation,
but for the most part the congressional role occurs primarily through oversight.
The authority to approve or disapprove airline mergers rests entirely with the
Department of Justice (DOJ). The Office of the Secretary of Transportation (OST)
makes recommendations to DOJ based on its evaluation of the effect of a proposed
merger on airline industry competition. Congress has no specific statutory role in the
airline merger review and approval process, having legislatively charged the
executive branch with that task. Members of Congress can, and do, file statements
with DOJ expressing their views on a proposed merger. Congressional interest going
forward is likely to focus on the proposed merger between Delta Airlines and
Northwest Airlines.
Recent incidents, including passengers being held in aircraft for eight or more
hours awaiting takeoff, passengers being stranded by the shutdown of bankrupt air
carriers, as well as deteriorating airline on-time arrival performance, have led to
increasing congressional interest in airline passenger consumer issues. Currently,
most passenger rights are set forth in the airlines’ “contract of carriage” language.
Existing law does, however, provide procedures and compensation rules for
“bumping” and lost or damaged baggage. The main power the Department of
Transportation (DOT) has to protect consumers is the department’s power to take
action against air carriers for “deceptive trade practices.”
Despite impressive airline safety statistics in recent years, some aviation safety
professionals and some Members of Congress have expressed concern that the
industry and regulators have been lulled into complacency with regard to safety. This
concern has been heightened recently in response to various findings that airlines
have failed to fully comply with aircraft inspections and repairs mandated by the
Federal Aviation Administration (FAA). Congressional oversight has focused on the
relationship between the FAA and the airlines and the manner in which the FAA
carries out its safety mandates.
This report provides an overview of selected airline related issues currently
subject to congressional oversight and/or possible legislation. Many of the issues
discussed here are also addressed in some fashion as part of the ongoing
congressional debate about reauthorization of the FAA. Those seeking additional
information on reauthorization should refer to CRS Report RL33920, Federal
Aviation Administration Reauthorization: An Overview of Selected Provisions in
Proposed Legislation. This report will be updated as warranted by events.
Contents
Economic Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Airline Mergers/Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Historical Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Recent Merger Discussions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Delta-Northwest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Airline Bankruptcies/Failures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Passenger Rights Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issues of Congressional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Passenger Access to Services on Delayed Aircraft
and the Right to Deplane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Delayed, Cancelled and Diverted Flights:
Refunds and Rerouting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Honoring Tickets of Airlines that Shut Down . . . . . . . . . . . . . . . . . . . . 9
Expansion of DOT Airline Consumer Complaint Investigations . . . . . 9
Airline Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
FAA Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Congressional Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Safety Management Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Data-Driven Safety Processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Air Transportation Oversight System (ATOS) . . . . . . . . . . . . . . . 13
The Aviation Safety Process As A “Partnership” . . . . . . . . . . . . . . . . 14
Current Concerns Regarding FAA Airline Safety Oversight . . . . . . . . . . . . 15
Maintenance Outsourcing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Related Legislation and Possible Options for Congress . . . . . . . . . . . . . . . 18
List of Figures
Figure 1. Selected Airline Mergers, Acquisitions, and Bankruptcies,
1978-2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Figure 2. The Aviation Safety Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Airline Industry:
Issues and Role of Congress
Mergers, airline bankruptcies, aircraft safety and maintenance concerns,
extensive flight delays and cancellations, $100-plus-per-barrel oil prices, and a litany
of other issues define congressional interest in the airline industry at present.
Congress does not play a day-to-day role in any of these issues. Most ongoing
oversight of the industry, to the extent that it does occur, takes place within the
executive branch. Congress periodically addresses airline issues through legislation,
but for the most part the congressional role, as will be discussed, occurs primarily
through oversight.1
Deregulation of the airline industry in 1978 eliminated most governmental
control over the business practices of airlines. Residual regulation over antitrust
matters (merger approval/disapproval) and oversight of certain competitive practices
remain, however, within the Department of Justice (DOJ) and Department of
Transportation (DOT), respectively. Oversight of airline consumer practices, while
limited in scope, also occurs at DOT.
As part of its authority over certain competitive practices, the Office of the
Secretary of Transportation (OST) reviews airline operating agreements and
marketing alliances, especially as regards non-U.S. airlines. It also has the
responsibility of “certificating” airlines — meaning it determines whether a new
airline is “fit, willing, and able” to provide the type of service it is seeking to provide.
Safety has never been deregulated. DOT’s Federal Aviation Administration
(FAA) exercises total oversight over the airline industry’s safety activities. It is
responsible for the licensing of all airline aircrew and mechanics, and for the
certification of all aircraft and their appropriate maintenance and operating
procedures, proscribes the operation of aircraft within the FAA operated air traffic
control (ATC) system, and provides active oversight of airline compliance with
maintenance and operating procedures.
This report provides an overview of selected airline related issues currently
subject to congressional oversight and/or possible legislation. It should be pointed
out that many of the issues discussed here are also addressed in some fashion as part
of the ongoing congressional debate about reauthorization of the FAA. These
relationships will be noted briefly as part of this discussion. Those seeking additional
information on reauthorization should refer to CRS Report RL33920, Federal
1 Title 49 of the United States Code enumerates in extensive detail most of the legal powers
that the federal government exercises over airlines.
CRS-2
Aviation Administration Reauthorization: An Overview of Selected Provisions in
Proposed Legislation.
Economic Issues
Airline Mergers/Acquisitions
Congressional interest going forward is likely to focus on the proposed merger
between Delta Airlines and Northwest Airlines. Although structured legally as an
acquisition — Delta is the acquirer in the combination and the CEO of Delta would
manage the combined firm — the proposal is most clearly viewed as a merger. It is
widely believed in the aviation community that this merger could be the first of
several in the industry. Press speculation, for example, focused until recently on a
possible United and Continental combination as a competitive response.2 Although
a United-Continental agreement failed, United is continuing merger talks with US
Airways. Future proposed mergers will also likely be of interest to Congress.
The authority to approve or disapprove airline mergers rests entirely with DOJ.
The OST makes recommendations to DOJ based on its evaluation of the effect of a
proposed merger on airline industry competition. Congress has no specific statutory
role in the airline merger review and approval process, having legislatively charged
the executive branch with that task. Members of Congress can, and do, file
statements with DOJ expressing their view of a proposed merger. During previous
merger discussions individual Members of Congress have taken positions both for
and against proposed mergers, hearings have been held, and some legislation has
been introduced and considered. For the most part, however, merger related
legislation has not been enacted, especially vis-a-vis a specific merger proposal. This
does not mean, however, that congressional opinions about mergers do not matter.
Historical Perspectives. As Figure 1 shows airline mergers and
acquisitions began occurring in the early to mid-1980s. During that period many of
the so-called “local service carriers” of the regulated era, such as Ozark, Republic,
Southern, and PSA, were combined into larger airlines. A second wave of
consolidation occurred in the later 1980s at least in part driven by the “leveraged
buyout” (LBO) phenomena. The effects of the First Persian Gulf War, which
depressed international airline travel for the first time in post World War II history,
put an end to most consolidation discussions at least for a time. Since then merger
activity has been sporadic, with some notable activity around the beginning of the
new Century, a significant combination in 2005, and the now proposed merger of
Delta and Northwest.
During the 1980s most congressional interest in mergers seems to have been
focused on service issues and on insuring that airline employees were fairly treated
as firms were acquired and/or combined. Some members of Congress expressed
2 Carey, Susan, and Melanie Trottman. “Continental Rejects Merger Overtures.” Wall
Street Journal. April 28, 2008; Maynard, Micheline. “United Said to Restart Talks with
US Airways.” New York Times. April 29, 2008.
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their views on many of the combinations of that time period. Congressional concern
was also expressed about how the merger approval process was exercised at the
federal level. Many felt that the Reagan Administration DOT was too friendly to
mergers, approving at least two mergers that DOJ had questioned. Ultimately, in
response to these concerns Congress acted to strip DOT of its preeminent role in the
merger approval process and moved it to DOJ beginning in 1989.
Recent Merger Discussions. Between 2000 and the end of 2007 there
were three significant merger/acquisition proposals. Two, American’s acquisition
of TWA (2001) and America West’s acquisition of US Airways (2005), were
approved without major congressional opposition. In each instance, the airline being
acquired (TWA and US Airways) was in significant financial difficulty, and the
acquisition was viewed by many as a way of preserving jobs and air service.
This was not the case for the May 2000 proposal by United to acquire US
Airways. That proposal engendered considerable public opposition which was very
much reflected by many Members of Congress. The merger proposal had some novel
features, including a proposal to create a new airline based at Reagan National
Airport, and later a link to the American and TWA merger, that were designed to
deflect possible anti-trust concerns related to the market power of a combined United
and US Airways. These proposals, however, were insufficient to ward off
considerable concern about the anti-competitive nature of the proposed combination.
Ultimately, DOJ would reject the merger in July 2001 and United withdrew its offer.
Congress played a very active role in the consideration of the proposed
United/US Airways merger. Although there were individual Members of Congress
who were in favor of the merger, there seems to have been significantly more
congressional opposition to the merger. These anti-merger positions were especially
apparent during several hearings held to examine the potential competitive effects of
the merger. Although no legislation blocking or otherwise altering the merger was
passed, several pieces of legislation that would have required these results were
introduced and considered.
Delta-Northwest. Executives of the merging carriers argue that this
combination is necessary for competitive reasons. In addition to creating the nation’s
largest airline, they believe the new airline will be “more stable and be better able to
grow to meet the challenges of the future” in what they view as a highly competitive
world airline industry and a difficult economic environment.3 From their perspective
the new combination, which will keep the name Delta, will provide synergies that
could reduce the firms’ operating costs by up to a $1 billion from the costs that would
be incurred by the two firms as separate entities. As part of their merger, they are
promising not to close airport hubs, reduce air service, or fire large numbers of
employees. They are also suggesting numerous other benefits that are described in
detail at [http://www.newglobalairline.com/].
3 Anderson, Richard and Doug Steenland. “Some Myths About Airline Mergers.” The Wall
Street Journal. April 16, 2008. p. A19.
CRS-4
Many airline industry observers are dubious of the claims made above. They
find it hard to understand, for example, how a firm that plans not to cut employees
and close hubs will be able to come up with the cost savings stated above. Also, the
track record of airline mergers in the United States is spotty at best, with some airline
analysts believing that there has never been an indisputably successful merger in the
industry.4 Even those who believe the merger might be positive question the
likelihood that the transition from two airlines to one will be smooth for fliers and
employees, by pointing to the ongoing difficulties at US Airways caused by merger
related employee and infrastructure integration issues.5
Approval of the merger is no foregone conclusion. DOJ has stated its intention
to closely examine the attributes of the merger, and DOT has begun its analysis of the
competitive effects of the merger. These reviews will likely take months to complete,
making it impossible to forecast when DOJ might announce its decision on the
merger.
Several Members of Congress, including the Chairman of House Committee on
Transportation and Infrastructure (T&I), Representative James Oberstar, and the
Chairman of T&I’s Subcommittee on Aviation, Representative Jerry Costello, have
reportedly expressed skepticism about the supposed positive aspects of the merger.6
They have stated an intent to hold hearings on the merger. Additional congressional
committees, Senate Commerce, Senate Judiciary, and House Judiciary, are also
expected to hold hearings on the issue.
Airline Bankruptcies/Failures
Failure is a normal feature of the U.S. business system. The failure of some
firms, however, is more notable than for others. This is the case for the airline
industry. In early spring 2008, four airlines filed for bankruptcy protection. Three,
Skybus, Aloha, and ATA, filed for Chapter 7 bankruptcy, have stopped flying and are
in the process of liquidating. Frontier filed for bankruptcy under Chapter 11 of the
Bankruptcy Code and is to continue to operate while it attempts to reorganize. All of
these failures have attracted some level of congressional interest. This is especially
true for Aloha, which provided a significant portion of Hawaii’s inter-island
transportation network.
4 Baily, Jeff. “In the Math of Mergers, Airlines Fail.” The New York Times. January 17,
2008 and McCartney, Scott. “The Middle Seat: What’s in a Merger? For Fliers, Not Much
— History Doesn’t Bode Well For Delta - Northwest Combo; A Legacy of Dropped
Routes.” The Wall Street Journal. April 16, 2008. p. D1
5 Reed, Dan. “US Airways highlights drawbacks of consolidation.” USA Today. March 6,
2008.
6 Aviation Daily. “Delta-NWA Merger Obstacles Include Labor, Competition.” April 16,
2008. p. 1
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Figure 1. Selected Airline Mergers, Acquisitions, and Bankruptcies, 1978-2007
Source: CRS analysis of various sources.
CRS-6
Bankruptcy is far from rare in the airline industry. It can almost be viewed as
an accepted business practice. As can be seen in Figure 1, several major airlines
have gone through multiple Chapter 11 reorganizations since 1978. For example,
Continental (1983 and 1990), US Airways (2002 and 2004), and America West,
which purchased US Airways in 2005, (1985 and 1991). In fact, more than 150
airlines, mainly start-up firms not shown in Figure 1 (known in airline terminology
as “new entrants”), but also some well known firms, have filed for bankruptcy in the
last 30 years. In the vast majority of these cases the bankruptcy led ultimately to a
departure from the industry. Where a Chapter 11 process ultimately led to a
successful reorganization, the airline often looked very different from the airline that
had filed for protection. There is no single reason why airlines go bankrupt.
Recessions, fuel prices, bad management decisions, and labor problems, can all play
a role. Unanticipated events like the first Persian Gulf War and September 11th,
which led to significant declines in flying, have led straight to the bankruptcy court.
Congressional interest in bankruptcy is generally focused on several issues.
Primary among these is the loss and/or prospective loss of air service at an airport,
in a community, or sometimes in a region. Of immediate interest is the consumer
fallout that accompanies a bankruptcy filing. Constituents who have been stranded
or find they no longer hold valid tickets, frequently turn to congressional offices in
search of redress. Also of interest to many Members is the fate of airline industry
employees. Employees may lose their jobs, have their salaries reduced or see their
pensions eliminated or reduced. The loss of airline pensions by former employees,
for example, were a major issue following the round of airline bankruptcies that
occurred after September 11th. In some hub airline cities, an airline’s workforce can
make up a sizable portion of the local electorate.
Congress does sometimes act to assist the airline industry in times of need.
Most notably this occurred immediately after September 11th when Congress passed
the Air Transportation Safety and System Stabilization Act (ATSA, P.L. 107-42).
ATSA provided immediate financial assistance and long term loans to the airlines to
keep them operating. ATSA did not preclude bankruptcies, but it arguably prevented
additional airline failures beyond those that occurred anyway. ATSA, as the event
it responded to, represented the extreme in terms of a congressional response. The
more typical congressional response over time to airline bankruptcies could be
characterized as disappointment combined with acceptance.
Passenger Rights Issues
Recent incidents including passengers being held in aircraft for eight or more
hours awaiting takeoff, passengers being stranded by the shutdown of bankrupt air
carriers, as well as deteriorating airline on-time arrival performance, have led to
increasing interest in airline passenger consumer issues. Currently, most passenger
rights are set forth in the airlines’ “contract of carriage” language. The contract of
carriage is the legal contract between the airline and the ticket holder which describes
the rights and responsibilities of both the air carrier and the passenger. Passengers
CRS-7
may take legal action in federal courts based on these contracts.7 Historically, the
DOT role in consumer protection has been limited.8 However, existing law does
provide procedures and compensation rules for “bumping” and lost or damaged
baggage.9 The main power DOT has to protect consumers is the department’s power
to take action against air carriers for “deceptive trade practices.” The definition and
interpretation of deceptive trade practices can significantly impact the scope of
DOT’s enforcement authority.
Although airline deregulation was enacted 30 years ago, some observers believe
that some of the perceived protections of the regulated era should be reintroduced.
There are two major differences in the unregulated environment versus the regulated
environment for air passenger transportation that are important to keep in mind when
examining airline passenger issues. First, under regulation, air carriers did not set
their prices; the Civil Aeronautics Board (CAB) did. This meant that air carriers, for
the most part, competed on service and frequency rather than price. In addition, with
prices fixed by the CAB, interline agreements among airlines to accept each others’
delayed passengers were simple to manage, because all the major carriers had very
similar fare structures. Since deregulation, and especially with the advent of low-cost
carriers as major players in the industry, the primary means of competition has
become price, not service.
Second, because the CAB used a cost-plus basis for setting fares, this
encouraged air carriers to maintain a significant amount of extra capacity. Air
carriers could have passenger load factors as low as 55% and still make money. This
meant that when there were flight delays or cancellations, most carriers had seats
available to accept transfers from other airlines. In recent years, air carriers have
undergone a period of intense price competition at the same time that fuel costs have
risen rapidly. Most air carriers have responded by pursuing higher passenger load
factors, which are now often above 80% for some airlines and are even higher on
some popular routes. Such high average passenger load factors mean that, during
flight delay or cancellation situations, there may be limited available seats for
transferred passengers.
7 With the deregulation of aviation, the airline contract of carriage took the place of rules
“tariffs” that were, under regulation, adopted and published by the airlines and that became
effective upon Civil Aeronautics Board approval. For a discussion of passenger rights
tariffs under regulation see, Senate, Judiciary Committee, Oversight of Civil Aeronautics
Board Practices and Procedures, Hearing, v. 2, February 19, 1975, Washington, GPO,
1975.
8 For a discussion of consumer rights see the DOT’s Aviation Consumer Protection
Division’s “Fly Rights,” available at [http://airconsumer.ost.dot.gov/publications/flyrights.
htm].
9 On April 16, 2008, Secretary of Transportation Mary Peters announced finalized changes
to the “bumping” rule, which doubles the compensation for passengers that are involuntarily
bumped to $400 if they reach their destination within two hours of their original arrival time
and to $800 if they do not arrive within two hours. U.S. Dept. of Transportation. U.S.
Transportation Secretary Peters Announces New Measures to Improve Air Travel
Experience. Washington, DC: DOT, April 16, 2008. The current ceiling for lost and
damaged passenger baggage is $3,000 per passenger.
CRS-8
Issues of Congressional Interest
During Congress’s current consideration of the reauthorization of the FAA,
most of the interest in passenger rights has been focused on issues related to
schedules and capacity: flight cancellations, delay, and transfers between airlines.10
Under airline contracts of carriage, consumers face a major caveat: many of a
passenger’s contractual rights regarding schedules and cancellations are limited to
delays and cancellations that are under the control of the airlines. All contracts of
carriage have “force majeure,” exclusions for events such as weather conditions,
war, strikes, and in some cases shortages of labor, fuel, and facilities, that cannot be
reasonably anticipated by the airlines. Both the House-passed and Senate-reported
FAA reauthorization bills include passenger rights provisions. For a summary of
these provisions see CRS Report RL33920, Federal Aviation Administration
Reauthorization: an Overview of Selected Provisions in Proposed Legislation.
Passenger Access to Services on Delayed Aircraft and the Right to
Deplane. The treatment of passengers onboard delayed aircraft is contractual, not
legislative, and varies from air carrier to air carrier depending on the text of their
contracts of carriage. Recent reports of passengers being stuck in an aircraft that is
stranded on the tarmac without access to adequate food, water and toilet facilities has
led to calls for federal action to mitigate the impact of these situations on passengers.
Options suggested include requiring the airlines to develop contingency plans to
assure that passengers’ onboard needs are met during delays, requiring airlines to set
a clear time frame under which they will be permitted to deplane, or mandating a
specific number of hours after which any passenger has the right to get off the
aircraft.11 The airlines oppose setting a standard benchmark for the number of hours
that passengers can be held on a plane for a variety of reasons. They argue that most
passengers would rather wait and arrive late rather than have the flight cancelled and,
that being forced to return to the gate would likely be against the wishes of the
majority of passengers. They also point out that the most egregious incidents involve
weather that impacts an entire airport, making the deplaning of delayed plane
passengers operationally difficult due to gates filled with other delayed aircraft and
terminal waiting areas already crowded with passengers awaiting other departures.
Delayed, Cancelled and Diverted Flights: Refunds and Rerouting.
The refund and routing options, as well as the amenities offered to passengers, are
also governed by the individual airlines’ contracts of carriage. Airline schedules are
not guaranteed. Passenger options vary from airline to airline. The consumer issues
of recent interest include providing up-front cancellation and delay statistics on
flights and also the re-booking and transferability of tickets of delayed or cancelled
flights. In general, a passenger on a cancelled flight may request a refund for the
unused part of the ticket or accept the offer of a seat on a later flight of the ticketed
airline. There is no federal requirement, however, that the airlines arrange for a seat
on a different airline. Delayed passengers may request transfer to a different flight
10 During the previous period of interest in passenger rights, 1999-2001, pricing issues, such
as access to the lowest fares, were also a major focus of legislative efforts.
11 See “Aid for Stranded Travelers,” by James Bernstein, Newsday, June 22, 2007; “Ice
Pellets and Passenger Rights,” by Les Abend, Flying, v. 134, July 2007, 92-95.
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of the same airline but may be required to pay a cancellation fee on the original ticket
or a higher fare to make the change. To transfer from one airline’s flight to another
airline’s flight without paying full fare for the second airline’s ticket, passengers need
to persuade the first airline to endorse the ticket to the second airline. Airlines
generally will only endorse tickets to or accept endorsed tickets from airlines with
whom they have negotiated interline agreements regarding the treatment of
transferred passengers. In recent years the major airlines have narrowed the scope
of their interline agreements, often only negotiating them with their code share
partners. Low-cost carriers generally do not have interline agreements. Even in
cases where interline agreements exist, making such arrangements is up to the
airline’s personnel on the scene. Some argue that the federal government should
require airlines to accept transfers from other airlines’ delayed or cancelled flights.
However, outside of a regulated environment, others say this could be problematic,
especially given the differences between the fare structures of the low-cost and legacy
airlines. It also would mean that the original ticketing airline would, in effect, be
pricing the fare for a seat on another airline.12
Honoring Tickets of Airlines that Shut Down. The recent shutdown of
ATA Airlines, Aloha Airlines, and Skybus has raised the issue of whether operating
airlines should honor the tickets of shutdown carriers. Since November 2006, there
has been no requirement that airlines must honor the tickets of an airline that has
ceased operations. The Aviation and Transportation Security Act of 2001 (P.L. 107-
71, Section 145), enacted November 19, 2001, included provisions that required
airlines providing service on a route to provide, “to the extent practicable,” service
on that route to passengers ticketed by an air carrier that discontinued service on that
route due to insolvency or bankruptcy. Passengers had 60 days, from the date of the
suspension of service, to make the transportation arrangements, and the airline
providing the service was allowed by DOT to charge a one-way fee of $25. The
provision lapsed on November 30, 2006. There has been some interest in introducing
legislation that would include provisions similar to Section 145.13
Expansion of DOT Airline Consumer Complaint Investigations.
Within DOT, the Office of Aviation Enforcement and Proceedings (OAEP) is
responsible for enforcing the DOT’s consumer protection rules. The OAEP has
significant authority, under the Airline Deregulation Act of 1978 (P.L. 95-504), to
investigate and take enforcement action against air carriers that engage in unfair or
deceptive practices and unfair methods of competition. This power is broader than
might be assumed at first glance. For instance, if a particular flight is consistently off
12 “Canceled Flight? Your Inn Trouble,” by Scott McCartney, Wall Street Journal, April 15,
2008, D1, D10; also see Statement of James C. May, President and CEO, Air Transport
Association of America, Inc., Before the Subcommittee on Aviation of the House Committee
on Transportation and Infrastructure, April 20, 2007, (Washington, Air Transport
Association), 2007, 7p.
13 See Dept. Of Transportation. Honoring Tickets of Insolvent Airlines Pursuant to the
Requirements of Section 145 of the Aviation and Transportation Security Act: Notice, June
1, 2005, (Washington, DC, 2005), p. 16. Includes a question and answer appendix. See also
McCartney, Scott. “When Airlines Fail, Fliers Have Few Protections,” Wall Street Journal,
April 8, 2008, p. D1.
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its schedule, advertising its rarely met scheduled departure and arrival times could
be investigated as a deceptive practice. OAEP can also investigate the availability
of seats under advertised fares or for frequent flyer awards. The OAEP’s staffing
level has been an issue. The staffing level peaked at 40 in 2003 and dropped to 33
in 2006. Also, much of the office’s resources have been directed to civil rights
violations such as disability-related issues, leaving limited resources for its consumer
protection responsibilities.14
Airline Safety
Since the early days of commercial aviation in the 1920s, Congress has
maintained a keen interest in the safety of airline operations. Over the past six years,
however, congressional oversight of airline safety has not been as extensive, largely
because the airlines have maintained an impressive safety record during this period.
Between 2002 and 2006, there were nine fatal accidents involving commercial air
carriers, four of which involved passenger fatalities. The accident rate over this
period was roughly one fatal accident for every ten million hours flown (0.01 fatal
accidents per 100,000 flight hours). By comparison, a decade earlier, during the
period from 1992 through 1996, fatal airline accidents were occurring at a rate of
about one every 3.7 million flight hours (0.027 fatal accidents per 100,000 flight
hours). Thus, the fatal airline accident rate has been reduced by a factor of about 2.7
over the past decade. Preliminary data for 2007 indicate that it too was a very safe
year, with no fatalities among the 766 million passengers enplaned on aircraft that
were flown a cumulative total of over 19 million flight hours.15
Despite these impressive statistics, some aviation safety professionals and some
Members of Congress have expressed concern that the industry and regulators may
have been lulled into complacency with regard to safety. This concern has been
heightened recently in response to various findings that airlines have failed to fully
comply with aircraft inspections and repairs mandated by the FAA.16 Congressional
oversight and investigation of these incidents have focused on the relationship
between the FAA and the airlines and the manner in which the FAA carries out its
mandate to regulate safety within the airline industry.
14 See DOT, Office of the Inspector General, Follow-up Review: Performance of U.S.
Airlines in Implementing Selected Provisions of the Airline Customer Service Commitment,
(Washington, DOT), 2006.
15 All statistics are derived from National Transportation Safety Board (NTSB) Air Carrier
Accident Data statistical summaries and include both scheduled and non-scheduled airline
operations flown under 14 C.F.R. Part 121 regulations.
16 See, e.g., Matthew Wald, “U.S. Inspectors Tell of Willful Neglect of Airline Inspection,”
The New York Times, April 3, 2008; Micheline Maynard and Matthew Wald, “U.S. Airlines
Face Prospect of More Chaos over Inspections,” The International Herald Tribune, April
10, 2008.
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FAA Authority
By statute, the FAA has been given broad authority to regulate and promote
safety within the airline industry. The FAA exercises this authority by establishing
minimum safety standards regarding the maintenance and operation of aircraft to
prevent or eliminate future accidents.17 The FAA issues operating certificates to air
carriers that provide specific terms for ensuring safety. Domestic air carriers and
airlines operating as U.S. flag carriers on international routes are governed by FAA
regulations codified in Title 14, Code of Federal Regulations, Part 121, and are
therefore known among aviation professionals as Part 121 carriers. Part 121 carriers
generally have the most stringent safety requirements, and receive the highest level
of scrutiny by FAA inspectors.
Congressional Involvement
While Congress has primarily relied on congressional oversight to press for
aviation safety improvements, at times it has legislated on airline safety matters. For
example, amid growing frustration over the FAA’s slow progress and airline
resistance to equipping aircraft with cockpit collision avoidance systems, Congress
included in the Airport and Airway Safety and Capacity Expansion Act of 1987 (P.L.
100-223) language establishing specific time lines for the advancement of this
technology and deadlines for the mandatory operational deployment and use of
Traffic Collision Avoidance Systems (TCAS) on passenger airliners. Also, as part
of the FY1992 Transportation Appropriations Act (P.L. 102-143), Congress included
a set of provisions referred to as the Aging Aircraft Safety Act of 1991, directing the
FAA to establish a regulatory framework for assuring the continuing airworthiness
of aging aircraft. Under the provisions of the act, the FAA was directed to provide
its inspectors with specific training in corrosion and metal fatigue auditing
inspections. The act resulted in the FAA’s creation of an aging aircraft inspections
program to study age-related structural issues in the air carrier fleet through a process
of inspections and systematic record keeping.18
FAA oversight of the airline industry came under intense congressional scrutiny
in the 1990s following a string of accidents involving USAir in the early 1990s, a
fatal crash of a commuter turboprop after encountering in-flight icing conditions in
October 1994, and the fatal crash of a Valujet DC-9 in the Florida Everglades in May
1996. Largely as a result of congressional findings following the Valujet crash,
Congress included two significant changes to FAA safety oversight in the Federal
Aviation Reauthorization Act of 1996 (P.L. 104-264). First, the act eliminated the
FAA’s dual mandate to promote the aviation industry while at the same time
regulating its compliance with safety mandates, and it specifically designated in
statute safety as the highest priority for air commerce.
Second, the act mandated that the FAA establish a system for protecting
voluntarily submitted safety-related information to encourage employees with first
17 See 49 U.S.C. Sec. 44701.
18 See 49 U.S.C. §44717.
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hand knowledge of unsafe conditions or practices to report their observations without
fear of reprisal. This initiative was considerably expanded by a provision in AIR-21
(P.L. 106-181) that established a formal whistleblower protection program for
aviation industry employees that come forward with information regarding air safety.
The Safety Management Approach
The Aviation Safety Action Program (ASAP) was established by the FAA to
meet these mandates and to encourage air carrier and repair station employees to
voluntarily report safety-related information by protecting their confidentiality and
providing certain safeguards against disciplinary or punitive actions.19 To
complement the voluntary reporting by airline employees, the FAA has also
established a Voluntary Disclosure Reporting Program (VDRP) for airlines, allowing
them to disclose safety information to the FAA, including notification regarding
possible regulatory violations.20 To encourage openness in the exchange of this
safety-related information, the FAA provides certain protections to the airlines
against civil actions in accordance with the guidelines of the program. The ASAP
and VDRP programs are an integral part of a broader airline Safety Management
System (SMS) concept designed to create a systemwide framework for identifying
and correcting safety-related problems in maintenance and flight operations.21 The
FAA regards the SMS concept as being a proactive approach to airline safety, in
contrast to the more classical rule-based regulatory enforcement approach, which it
regards as being more of a reactive approach.22 In this regard, the SMS concept is
viewed as one of several approaches to aviation safety that respond to criticisms that
the FAA has historically been reactive in its approach, rather than proactive, stepping
in only after festering unsafe conditions have resulted in notable incidents or tragic
accidents.
The SMS approach does not, however, replace formal safety reporting
processes, compliance with FAA directives, and regulatory oversight, inspections,
and enforcement, but is meant to complement these aspects of safety regulation.
Nonetheless, some critics of the approach caution that a potentially unintended effect
of an SMS approach is the de-emphasis of these more traditional regulatory oversight
functions which, in their view, may erode important checks and balances designed
to ensure that a high level of safety and regulatory compliance is maintained.23
Others argue, however, that as a result of technology advances, safety monitoring has
19 See Federal Aviation Administration, Advisory Circular AC120-66B - Aviation Safety
Action Programs (ASAP), November 15, 2002.
20 See Federal Aviation Administration, Advisory Circular AC-00-58A - Voluntary
Disclosure Reporting Program, September 8, 2006.
21 For further reading, see Federal Aviation Administration, Advisory Circular AC-120-92:
Introduction to Safety Management Systems for Air Operators, June 22, 2006.
22 Clark, Rick. Federal Aviation Administration (AFS-220). The “Why” and “What” of
Safety Management Systems. Presented at Training Center Program Manager Conference,
March 26, 2008.
23 Air Transport World Daily News. “US FAA’s ‘collaborative’ relationship with airlines
questioned.” April 7, 2008.
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become much more of a data-driven activity that relies on near real-time assessment
of operational conditions that have necessitated significant changes in the manner in
which airlines monitor safety and the FAA conducts its oversight activities. Under
this line of reasoning, advocates argue that meeting the changing nature of the
industry requires FAA oversight functions to be more directly focused on safety-
related processes and functions, rather than the more specific details of regulatory
compliance.
A somewhat related concern has recently been raised, however, over the FAA’s
Customer Service Initiative. The initiative was first launched in late 2003 with the
intent of creating a more uniform and consistent approach to regulatory oversight
nationwide and be more responsive to concerns about the interpretation or
application of regulatory matters by the FAA.24 The FAA contends that
misinterpretation of this initiative led some inspectors to treat airlines more as
business clients of the FAA rather than regulated entities, resulting in lax
enforcement. The FAA has vowed to fix this misunderstanding and emphasize that
while inspectors should be respectful and responsive to airline concerns, they should
not be treating them as customers or clients.25
Data-Driven Safety Processes. To address the needs for data-driven safety
monitoring, airlines include various safety data collection and analysis tools as part
of their overall SMS approach. For example, in addition to ASAP, most major
airlines conduct some form of flight operational quality assurance (FOQA) program
to review electronically recorded data from flights to identify potentially unsafe
operational conditions as part of their overall safety management approach. To
encourage the use of these data-driven processes for identifying potential safety
issues, FOQA data is afforded nondisclosure protections, and the FAA is generally
prohibited against using FOQA data in carrying out enforcement action against an
airline or its employees, except in cases involving criminal or deliberate acts.26 The
SMS concept relies on data-driven processes, like FOQA, to target and correct safety
deficiencies, hazards, and other unsafe conditions in maintenance and flight
operations. The SMS framework serves as the airline counterpart to the FAA’s data-
driven approach to oversight: the Air Transportation Oversight System (ATOS).
The Air Transportation Oversight System (ATOS). The FAA’s ATOS
system has been phased in over the past 10 years, and is now the primary tool for
managing and administering FAA oversight and inspections of Part 121 operators.
As compared to more traditional inspection methods that rely heavily on individual
inspector expertise and focus on regulatory compliance issues, ATOS is a data-driven
program that relies on risk assessments and analysis to focus inspection activities on
particular areas where safety deficiencies might be expected at a specific air carrier.
While the program’s objectives and principles are generally viewed as a positive
change for aviation safety by many, reviews of the program have revealed that its
effective implementation has been hindered by a lack of standardization; a lack of
24 Ibid.
25 Ibid.
26 See 14 CFR §13.401.
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adequate tools to help inspectors track safety deficiencies and corrective actions;
insufficient training; and inefficient allocation of human resources. A provision in
Vision 100 (P.L. 108-176) mandated that the FAA develop an action plan to correct
existing problems with the ATOS system and extend the program to oversight at
more than 100 smaller air carriers in addition to the major passenger air carriers
currently in the program. These provisions required the FAA to: develop inspection
checklists for FAA inspectors and safety analysts; provide training in systems safety,
risk analysis, and auditing to FAA safety inspectors; ensure that inspectors are
physically located where they are most needed; and establish a strong central
leadership for ATOS that will ensure that the system is consistently implemented and
expanded. Since 2003, when Vision 100 was enacted, the ATOS program has
expanded considerably and is now in use for monitoring most Part 121 operators.
The Aviation Safety Process As A “Partnership”. Data from the ASAP
and VDRP report systems, along with airline service difficulty reports (SDRs), FAA
incident investigations, and NTSB accident investigation findings and
recommendations, complement the FAA’s primary system for air carrier oversight,
ATOS, in achieving the objective of identifying and ultimately correcting unsafe
conditions in the airline industry. A formal mandatory process exists for airlines to
notify the FAA of safety-related findings through service difficulty reports (SDRs).
Also, FAA and NTSB investigations of air carrier incidents and accidents may lead
to findings and formal safety recommendations. These can result in the direct
issuance of airworthiness directives (ADs) by the FAA outlining methods to correct
unsafe conditions, or may be communicated to the aircraft or aircraft component
manufacturer to identify a fix. Often, the manufacturers will issue a service bulletin,
which may then be incorporated by reference into an FAA-issued AD that all
operators of a particular aircraft type must fully comply with, or seek an approved
alternative method of compliance, in order to continue flying affected aircraft in
accordance with the timetables and details provided in the AD (see Figure 2). With
regard to maintenance, all civil aircraft operators, including Part 121 air carriers, are
required to maintain operational aircraft in an airworthy state by complying with all
FAA-issued ADs specifying compliance requirements to correct identified unsafe
conditions in an aircraft, aircraft engine, or other aircraft components.
The model is, and has always been, a model of shared responsibility: the airlines
have the responsibility to identify and report suspected unsafe conditions associated
with the design of an aircraft, the manufacturer has the responsibility to work toward
correcting conditions related to the design of an aircraft or aircraft component
determined to compromise safety, and the FAA has the ultimate responsibility to
regulate the process and ensure safety across the entire airline industry. The addition
of safety management systems concepts in recent years has provided an element of
increased “partnership” between the FAA and industry, providing specific tools for
encouraging the reporting of unsafe conditions and practices and technological
advances allowing airlines to conduct detailed data-driven analyses of operational
safety.
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Figure 2. The Aviation Safety Process
FAA
Airworthiness
Inspections
NTSB
Directives
and
(ADs)
Safety
Audits
Recommendations
VDRP
ASAP
Voluntary
Disclosure
Service Difficulty
Reports (SDRs)
Employees
Service Bulletins
Manufacturers
FOQA, etc.
Airlines
Source: CRS Analysis.
Current Concerns Regarding FAA Airline Safety Oversight
Recent investigation and evidence provided by two whistleblowers in the FAA’s
Southwest Airlines Certificate Management Office (CMO) have pointed to specific
examples of aircraft being flown beyond the compliance deadline of certain ADs
related to fatigue cracking of skin panels on and required rudder checks of certain
Boeing 737 aircraft.27 These findings have raised significant questions about the
effectiveness of the above described system and processes related to airline safety
practices and FAA oversight. There has been considerable concern within Congress
and among some aviation safety experts that the pattern of regulatory non-compliance
and lax FAA oversight could be much more widespread and may be indicative of
systemic problems with either the aviation safety oversight process or the manner in
which it is being currently implemented by the FAA.
In response to the increased public and congressional scrutiny of FAA oversight
of air carrier maintenance following these incidents, the FAA has intensified its
efforts to ensure full compliance with airworthiness requirements. In early March
2008, the FAA levied a record civil penalty of $10.2 million against Southwest
Airlines as a result of its findings regarding Southwest’s noncompliance with
27 See U.S. House of Representatives, Committee on Transportation and Infrastructure.
Summary of Subject Matter: Critical Lapses in FAA Safety Oversight of Airlines: Abuses
of Regulatory “Partnership Programs,” April 1, 2008, Hearing held April 3, 2008.
CRS-16
airworthiness requirements related to the above mentioned incidents.28 Under intense
media scrutiny following this action, Southwest grounded several aircraft and
cancelled numerous flights to conduct additional inspections across portions of its
fleet.
On March 13, 2008, the FAA issued a notice directing a nationwide audit of Part
121 air carrier compliance with ADs.29 This has resulted in a recent spate of airline
flight cancellations and schedule disruptions, as the FAA uncovered various cases of
nonconformity with required maintenance procedures to comply with various ADs
as a result of this audit. In particular, various operators of Boeing McDonnell
Douglas MD-80 aircraft have cancelled flights to reinspect and correct work done to
comply with an AD issued in 2006 to address concerns over potential shorts and
arcing of electrical wiring in the airplanes’ wheel wells that could cause a fire. Some
have raised concerns that these actions — coming at a time when airlines are facing
rising fuel costs and economic conditions that make raising ticket prices to offset
these rising costs difficult — is placing significant strain on the airline industry.
Also, some noted safety experts have questioned whether these actions have had any
bearing on improving safety or whether the lapses in AD compliance constituted any
significant risk to the safety of the traveling public.30
Maintenance Outsourcing. In addition to the current focus on FAA
oversight, concerns over the degree to which air carriers outsource maintenance to
third party certificated repair stations and other facilities, including non-certificated
aircraft maintenance facilities, and the level of FAA oversight of these various
facilities has been an ongoing concern. U.S. air carriers are increasingly outsourcing
maintenance to third-party repair stations, and outsourced maintenance now accounts
for more than 50% of air carriers’ total maintenance costs.31 For airlines,
maintenance outsourcing has largely been viewed as a cost saving approach. In many
instances, airlines have contracted with foreign repair stations which can often offer
considerably lower costs because of lower labor rates in other countries. However,
outsourcing practices, both domestically and internationally, raise concerns over the
qualifications of maintenance personnel and the ability of the FAA to conduct
effective regulatory oversight. Across the contract maintenance industry, the ratio
of workers to supervisors is not regulated and often exceeds 10 to 1, raising questions
over the adequacy of supervision in contract maintenance operations. Further,
contracted maintenance workers, many of whom work part-time at repair facilities
alongside full-time regular employees, often are not required to obtain FAA
28 Jeff Bailey, “After Fine, Southwest Suspends 3 and Hires Specialist,” The New York
Times, March 12, 2008.
29 U.S. House of Representatives, Committee on Transportation and Infrastructure.
Summary of Subject Matter.
30 Pasztor, Andy, Susan Carey, and Paulo Prada. “Airline Experts Vouch for Industry’s
Safety.” The Wall Street Journal, April 11, 2008, p. A4.
31 Consumer Reports. “An Accident Waiting to Happen?” March 2007, pp. 16-19.
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certification, and the screening and selection processes for these workers has been
described as minimal.32
With regard to the potential implications for airline safety, concerns over FAA
inspector oversight of contract maintenance practices surfaced during the NTSB’s
investigation of the March 16, 2003 crash of a US Airways commuter flight operated
by Air Midwest in Charlotte, NC. The investigation found that elevator control cables
were improperly rigged by subcontracted maintenance workers at a non-certificated
facility, and it has been suggested that FAA had a limited understanding of the
contract arrangements and minimal knowledge of the work conditions and
supervision of work being performed at this maintenance facility.33 The crash
investigation, in conjunction with growing concerns over FAA oversight of
maintenance at facilities not required to be certificated as designated repair stations,
prompted a DOT Office of Inspector General (OIG) audit of air carrier use of these
non-certificated maintenance facilities. The DOT OIG found that while these
facilities operate outside the scope of regulations pertaining to certificated repair
facilities, there are no specific limitations regarding the type and scope of work they
perform, and maintenance performed at these facilities is largely unmonitored by
FAA inspectors.34 The safety implications of outsourced maintenance work and the
FAA oversight of vendors that perform this work remains an issue of considerable
interest to Congress.
Some have also alleged that the increased use of outsourced maintenance is
contributing to flight delays, because airplanes are sometimes being returned to
service by these repair stations with work performed incorrectly resulting in
additional delays and cancellations to pull these aircraft out of service and fix them
properly.35 Analysis of airline-caused delays and maintenance outsourcing data
among 14 major air carriers in 2005 tabulated by Consumer Reports indicated a
correlation of 0.47 (on a scale with 0 indicating no relationship and 1 indicating a
perfect relationship) between the percent of maintenance outsourced by an airline and
the percent of airline-caused delays.36 While this relationship provides some
indication of a possible link between outsourcing and delays, the correlation alone
cannot establish a causal link, and the strength of the correlation only weakly
supports the notion that outsourcing and delays go hand-in-hand. Nevertheless, faced
with increasing concerns of air carrier service delays, this is another aspect of
outsourcing that may warrant further examination.
32 Crotty, Bart. “Aviation Contracted Maintenance Workers, Are They Safe Enough?”
Aviation Maintenance, July 2006, pp.14-17.
33 Ibid.
34 Department of Transportation, Office of Inspector General. Air Carriers Use of Non-
Certificated Repair Facilities. Report Number AV-2006-031, December 15, 2005.
35 Consumer Reports. “An Accident Waiting to Happen?”
36 CRS analysis of data presented in Consumer Reports, “An Accident Waiting to Happen?”
.
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Related Legislation and Possible Options for Congress
Related congressional oversight and legislative activity have centered on options
for improving the FAA air safety inspector workforce, the manner in which this
workforce carries out its compliance audits of the airline industry, and possible
safeguards to reduce potential conflicts of interest that may compromise the
regulatory role of FAA inspection activities. Additional options are being pursued
for increasing regulatory requirements and oversight of foreign repair stations and
airline use of non-certificated repair facilities. Most of these options are being
considered within the context of pending FAA reauthorization legislation.
Specifically, the FAA Reauthorization Act of 2007 (H.R. 2881) as passed by the
House includes a provision that would restrict the use of non-certified maintenance
providers, allowing only airline employees or employees of FAA-certified repair
stations to carry out substantial and routine maintenance and complete required
inspections of aircraft used in airline service. Air carriers would also be required to
provide complete lists of their non-certificated maintenance providers, whose
activities would be restricted to non-routine, non-substantial maintenance and repair
work under this provision. The bill also adopts an amendment agreed to by the House
that would extend the requirement for drug and alcohol testing programs to
safety-critical positions at foreign repair stations working on air carrier aircraft or
components. Drug testing programs are already required for safety-critical
maintenance personnel working for airlines and repair stations servicing air carrier
aircraft within the United States, and this extension to foreign repair stations agreed
to by the House was widely regarded as closing a gap that could have potential safety
implications. Implementation and oversight of such a requirement, however, may be
complicated by specific privacy laws and rights in foreign countries that may limit
the FAA’s authority to impose drug and alcohol testing programs at facilities located
in other countries that are comparable to existing programs in the United States. The
Senate began consideration of the FAA reauthorization on April 28, 2008. It has
taken up consideration of H.R. 2881, as amended by the text of The Aviation
Investment and Modernization Act of 2007 (S. 1300) and the American Infrastructure
Investment and Improvement Act of 2007 (S. 2345). This legislation does not
include similar provisions regarding regulations or oversight of repair stations or
third-party air carrier maintenance providers.
The prior FAA reauthorization act, Vision 100 (P.L. 108-176), enacted in 2003,
directed the GAO to examine FAA inspector training and tasked the National
Academies with conducting a study of FAA inspector workload and staffing
standards. This study identified a variety of trends affecting the nature of FAA
oversight of air carriers including evolving technologies, industry trends toward
maintenance outsourcing, the increasing use of designees, and the shift to a system
safety approach.37 The study also concluded that the inspector workforce is expected
to change considerably over the next several years with increasing numbers of
retirements expected. Language in House-passed H.R. 2881 directs the FAA to
37 National Research Council, Committee on Federal Aviation Administration Aviation
Safety Inspector Staffing Standards. Staffing Standards for Aviation Safety Inspectors.
National Academies Press: Washington, DC, 2006.
CRS-19
implement the inspector staffing model called for in this study, and it would
authorize specific appropriations to carry out the implementation of this staffing plan.
The version of S. 1300 reported in the Senate and incorporated into the Senate
version of H.R. 2881 struck out an earlier provision of the introduced bill that would
have required the FAA to develop a staffing model for its inspector workforce.
However, language inserted into the Senate version of H.R. 2881 would authorize the
FAA to hire 200 additional aviation safety inspectors.
The Senate version of H.R. 2881 contains several provisions intended to
enhance FAA air carrier oversight activities. First, the bill calls for improvements
to the VDRP that would require inspectors to evaluate an air carrier’s proposed
corrective actions to ensure that they encompass all affected aircraft and adequately
correct the disclosed problem within an acceptable timeframe. The bill would also
require the FAA to establish a secondary review process to ensure that issues
disclosed under the VDRP have not been previously identified by an FAA inspector
or previously disclosed by the air carrier within the past five years. The bill would
also establish a two year post-employment moratorium on FAA inspectors. Under
this provision, FAA inspectors would be barred from representing or negotiating on
behalf of an airline that they were responsible for inspecting in matters before the
FAA for a period of two years after leaving their FAA post. The bill would also
require the FAA to establish a system for tracking field office reviews of air carrier
compliance with ADs. It would require a full audit of all air carriers covered under
ATOS to undergo a comprehensive 100% AD compliance review every five years.
As part of these compliance reviews, FAA inspectors would be required to conduct
physical inspections on a sampling of aircraft at each air carrier to ensure proper
methods of AD compliance. The bill would also require the FAA to establish a
means for ensuring that appropriate local and regional FAA offices and the FAA
Administrator are alerted of air carrier noncompliance with an AD. The bill also
calls for an independent GAO review and investigation of safety issues identified and
reported by FAA employees, and it would require the FAA to establish a national
review team to conduct periodic, random reviews of FAA air carrier oversight and
provide annual reports of its findings and recommendations. The bill would also
require the DOT OIG to provide progress reports on the effectiveness of the FAA’s
national review team.
Legislators in both the House and the Senate are reportedly contemplating the
introduction of legislation to establish a “cooling off” period that would restrict
former FAA inspectors from seeking employment with air carriers for some period
after leaving their positions at the FAA,38 as reflected by the provision in the Senate
version of H.R. 2881 mentioned above. This “cooling off” period is intended to
reduce potential conflicts of interest for inspectors who may go easy on air carriers
they oversee in hopes that doing so could improve their chances of landing an airline
job. Various post-employment restrictions already exist for civil service employees,
including FAA inspectors. However, under these post-employment conflict-of-
interest laws, non-senior level federal employees generally have a broad range of
employment options within regulated industries they had direct dealings with as a
38 Carlstrom, Gregg. “Bills Would Slow Revolving Door Between FAA, Airlines,” Federal
Times, April 15, 2008.
CRS-20
federal employee, so long as their post-government activities do not involve
representing or advocating for a private employer before the federal government
regarding matters that the individual had personally and substantially worked on as
a federal employee (see CRS Report 97-875, “Revolving Door,” Post-Employment
Laws for Federal Personnel, by Jack Maskell). The FAA has indicated that it too is
contemplating specific post-employment rules that would establish a “cooling off”
period for FAA inspectors, as recommended by the DOT OIG.39
39 Hohmann, James. “FAA Chief Defends Cooperation With Airlines,” The Los Angeles
Times, April 18, 2008.