I could not help but wonder about FAA management conduct in the recent SWA case when I reviewed the powers of FAA inspectors in general and more importantly the powers of principal maintenance and operations inspectors at an air carrier. Do they all have the power to ground aircraft they deem unsafe for flight … or to be more precise, unsafe for flight by federal statute?
Lets review a little bit about ADs. An Airworthiness Directive is considered federal law or statute. A violation can be considered a federal crime. Included here is an excerpt from a Regional FAA memo dealing with AD’s application:
ADs are rules issued under authority of Title 49 U.S. Code that apply to aircraft, their engines, propellers and appliances, based on the approved design of the product. Individual ADs are published in the Federal Register as amendments to Part 39. To issue an AD the FAA must determine that an unsafe condition exists and that it is likely to exist or develop on other products of the same type design. An AD requires an owner or operator of the product to perform certain actions in order to correct the identified unsafe condition. Part 39 also prohibits the operation of any product that does not meet the requirements of an applicable AD. (See also AC 39-7C, 11-16-95)
An old NTSB case taught me that the FAA is given the responsibility to issue aircraft airworthiness certificates. Section 609 of the FAA act gives FAA Administrators authority (via their inspector agents) to re-inspect any civil aircraft. If after inspecting the aircraft or its maintenance records the aircraft is found to be unsafe for flight, the airworthiness certificate can be suspended or revoked, as the circumstances may direct.
At SWA this alternative seems to have been initially ignored. If an Airworthiness Directive was violated, then the aircraft concerned were unsafe for further flight and the FAA and its agents could have grounded all affected aircraft until the defects were corrected. (This was of course done late in the game by the air carrier itself.) We have to keep in mind that SWA understood that it had tacit approval to continue to overfly the AD requirements while attending to the uncompleted parts of the AD. Needless to say, this approval was not in writing. For this it gets a $10 million fine and a grounding.
A further note on AD compliance. Part 39 does not allow an owner or operator to make unilateral changes to an AD. However, most have provision for an alternative method of compliance (AMOC). In addition, there is administrative provision to grant an extension of time to comply with the provisions of any AD consistent with an appropriate request.
There was something wrong in the way that the FAA was monitoring compliance with airworthiness directives. The way that it did business with air carriers will now change according to reports. Undoubtedly, this siege will continue. As SWA and AA have said, FAA has now changed the rules and the way it does business.
About self-disclosures AC 00-58A
Self-disclosures are designed to promote safety and encourage disclosure of problems by offering the possibility of immunity from enforcement action. SWA had filed a self-disclosure after the fact of FAA discovering the defects in compliance with the AD concerned. An FAA inspector (not from SWA) has told me about the distress at Southwest and the alleged cozy relationship between the FAA and air carriers. He and others have said that this has been known and accepted for many years at the highest levels of FAA management.