FAA’s Reaction to B-787 used Wrong Legal Basis and its Misuse of ADs is a Pattern

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AIN Blog: Torqued: Emergency AD Inappropriate in Case of Boeing 787

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Former NTSB Member John Goglia is right; the FAA’s reaction to the B-787 lithium ion battery problem was technically wrong. It is correct that there was a problem with the aircraft and that the airplane should have been grounded while the solution was identified. Issuance of an Airworthiness Directive was not, as noted by Mr. Goglia, the appropriate legal action.

Administrator Bond in 1979 faced a similar problem when AA Flight 191 crashed after take off from Chicago’s O’Hare Airport. He knew that the engine fell off of that DC-10, but he did not know why. He issued an FAA Order suspending the type certificate of that McDonnell Douglas airplane. The FAA determined that a maintenance procedure was cracking that aircraft’s (and others’) pylon (see above picture) and that flaw resulted in the separation of the engine.

According to the FAA’s own regulations (14 CFR §39.11), an Airworthiness Directive MUST specify :

“…inspections you must carry out, conditions and limitations you must comply with, and any actions you must take to resolve an unsafe condition.”

The FAA’s Emergency AD as to the B-787 , Emergency AD 2013-02-51, issued on January 16, 2013, was “interim” and no specific inspection, condition, limitation or action was mentioned in accordance with §39.11. The closest that document came to meeting the agency’s own requirements was the following ambiguous statement:

“This AD requires modification of the battery system, or other actions, in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA.”

This may seem to be a small, technical point, but the FAA’s use of ADs, particularly the specificity of the instructions as to conditions, limitations and actions, has become a recurrent problem (see ARSA’s recent criticisms in an ARC ). Particularly when the FAA has demonstrated a pattern of severe enforcement actions for failure to comply with ADs, it is important that the FAA to adhere to its own FARs and to issue methods with which the carrier can comply.

As to the B-787 problem, the FAA used the wrong legal authority and in so doing gave further evidence of its inability to express the solutions required of an AD. Carriers and the holders of Type

Certificates need to be aware of such fine distinctions (they matter; they can impact FAA enforcement cases!). A course for your regulatory affairs personnel or the availability of an expert on ADs/TCs/PCs could save substantial civil penalties and/or related headaches.

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