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Blacklisting: Toward a More Balanced Approach
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  1. Worldwide Conference on Aviation Safety, Security and the Environment Sep. 16, 2007 Blacklisting:Toward a More Balanced Approach Kenneth P. Quinn, Esq. Partner Pillsbury Winthrop Shaw Pittman, LLP kquinn@pillsburylaw.com

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. FAA and Int’l Aviation Safety Assessment • 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

  10. 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

  11. FAA and Int’l Aviation Safety Assessment Process: • Application for foreign air carrier permit filed with DOT • 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 • Upon successful assessment, FAA forwards positive recommendation to DOT, and foreign air carrier receives permit authority and Part 129 Operations Specifications

  12. FAA and Int’l Aviation Safety Assessment Countries currently designated as Category 2 by FAA: • Bangladesh • Belize • Bulgaria • Congo • Gambia • Ghana • Guyana • Haiti • Honduras • Indonesia • Kiribati • Nauru • Nicaragua • Paraguay • Serbia & Montenegro • Swaziland • Ukraine • Uruguay • Zimbabwe

  13. 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

  14. QUESTIONS? Kenneth P. Quinn, Esq. Partner Pillsbury Winthrop Shaw Pittman, LLP (202) 663-8898 kquinn@pillsburylaw.com