The FAA's move to performance-based oversight: developments, challenges, and shifting legal landscapes

"1 Instead, Administrator Huerta prodaimed a new "Compliance Philosophy": We are using data, not calendar dates, to determine We want inspectors to use their judgment, experience, expertise and qualifications to identify risk, to work with the individual or operator, and to identify the most appropriate tools needed to permanently fix the problems.2 Regrettably, at approximately the same time as Administrator Huerta was announcing the Federal Aviation Administration's (FAA's) dedication to a new data- and risk-based oversight paradigm, the Department of Transportation Inspector General released findings that the FAA lacked appropriate staffing models and practices to oversee the FAA's Organization Designation Authorization (ODA) program, through which the FAA has attempted to redirect its oversight from individual persons and practices to the procedures that ODA organizations apply to oversee their experts and practices.3 The program's purpose was to increase the efficiency of FAA oversight by focusing on systems rather than technicalities. Performance-based oversight is not rule indifferent, but it recognizes that not all rule infractions present equal risk and that there can be substantial residual risk even with complete rule compliance. Because it depends on data, most of which is in the hands of the regulated parties, performance-based oversight must be collaborative and flexible.