Blacklisting: Toward a More Balanced Approach

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BlacklistingToward a More Balanced Approach
Worldwide Conference on Aviation Safety,
Security and the Environment Sep. 16, 2007

• Kenneth P. Quinn, Esq.
• Partner
• Pillsbury Winthrop Shaw Pittman, LLP
• kquinn_at_pillsburylaw.com

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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

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European Blacklisting
Advantages

• 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)

Disadvantages

• 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

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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

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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

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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

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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

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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

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FAA and Intl Aviation Safety Assessment

• Not overreaching like the EUs 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

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FAA and Intl Aviation Safety Assessment

• FAAs 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

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FAA and Intl Aviation Safety Assessment

• Process
• Application for foreign air carrier permit filed
  with DOT
• DOT notifies FAA of application, requesting FAA
  evaluation of foreign CAAs 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
• Upon successful assessment, FAA forwards positive
  recommendation to DOT, and foreign air carrier
  receives permit authority and Part 129 Operations
  Specifications

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FAA and Intl Aviation Safety Assessment

• Countries currently designated as Category 2 by
  FAA

Bangladesh Belize Bulgaria Congo Gambia Ghana Guya
na Haiti Honduras Indonesia Kiribati Nauru
Nicaragua Paraguay Serbia Montenegro Swaziland U
kraine Uruguay Zimbabwe
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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
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QUESTIONS?

• Kenneth P. Quinn, Esq.
• Partner
• Pillsbury Winthrop Shaw Pittman, LLP
• [phone]
• kquinn_at_pillsburylaw.com