The NTSB issued a press release announcing that it would hold a forum and an “investigative hearing.” The purpose was stated as follows:
“With the grounding of the 787 fleet, concurrent international incident investigations, redesign and re-certification activities taking place simultaneously, it is essential to provide the aviation community, policy makers and the public with the factual information we are developing. Releasing an interim report provides a window into the significant investigative work that has been accomplished so far.
The forum, which will be held in mid-April, will explore lithium-ion battery technology and transportation safety. The investigative hearing, to be held later in April, will focus on the design and certification of the 787 battery system.
The information developed through the upcoming forum and the hearing will help the NTSB and the entire transportation community better understand the risks and benefits associated with lithium batteries, and illuminate how manufacturers and regulators evaluate the safety of new technology.”
It is not clear what statutory power the NTSB is exercising; the law, 49 USC § 1131(a)(1), (2)(A), defining that body’s general authority, states as follow:
(a) General.–(1) The National Transportation Safety Board shall investigate or have investigated (in detail the Board prescribes) and establish the facts, circumstances, and cause or probable cause of–
(A) an aircraft accident the Board has authority to investigate under section 1132 of this title…
(2)(A) Subject to the requirements of this paragraph, an investigation by the Board under paragraph (1)(A)-(D) or (F) of this subsection has priority over any investigation by another department, agency, or instrumentality of the United States Government. The Board shall provide for appropriate participation by other departments, agencies, or instrumentalities in the investigation. However, those departments, agencies, or instrumentalities may not participate in the decision of the Board about the probable cause of the accident.
If the NTSB is exercising its §1131(a) (1), (2) (A) statute, it is exclusive (see Italicized text) and any other agency must defer to the NTSB. The Board has not exercised that priority power.
The Board’s press release acknowledges that there is a concurrent recertification proceeding (201322202/22/20 The Boeing Company Airplanes 2013-02-51), but does not acknowledge that 14 CFR Part 139 is an exclusive power of the FAA. The Administrator has made public pronouncements that his organization is expeditiously, but carefully moving to determine the airworthiness of that aircraft, assessing the remedial actions that Boeing is testing and considering whether to approve methods that would meet the Emergency Airworthiness Directive’s requirement to obtain approval by the Manager, Seattle Aircraft Certification Office (ACO), FAA.
The authorities are intended NOT to overlap; the NTSB is only supposed to investigate accidents or incidents under §1131(a)(1), (2)(A) and issue a probable cause.
The FAA has exclusive power to issue, modify or suspend a Type Certificate. Thereunder, the Administrator has issued an Emergency AD (perhaps more appropriately should have suspended the TC) and is in the process of resolving the airworthiness of the aircraft.
Congress, in establishing these two bodies, took the time to define their statutory roles and to separate them FOR GOOD REASON. The legislature’s wisdom of the differentiation of their statutory powers is demonstrated by the current situation and further explicated by the following potential situations:
- The Administrator determines on (hypothetically) April 1 to that Boeing has proscribed a method to comply with the Emergency AD and permits compliant aircraft to operate; the NTSB “determines” through its investigative hearing that the lithium ion battery is inherently unsafe.
- The experts make it clear at the NTSB’s mid-April forum that the battery’s design is not a problem and the FAA Administrator is not yet prepared to remove the limitations of the Emergency AD.
- The Civil Aviation Authority of Qatar reads the NTSB’s forum experts opinion that the battery is airworthy and authorizes Qatar Airways to resume flying of the B-787.
The infinite hypothetical anomalies demonstrate that the statutory distinctions were imposed to avoid conflicts and confusion. Either the NTSB must assert the primacy of §1131(a) (1), (2)(A) or withdraw its parallel, simultaneous investigation to allow the FAA to do its exclusive duty.