To Ground or Not to Ground

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?

ADs 101
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.

He cited an example where he found a violation of an AD that had not been complied with at an air carrier where he worked. He told the carrier to comply with the AD. They filed a self-disclosure report with the inspector. They continued to operate the aircraft concerned in violation of the AD requirement and failed to complete the detail requirements for a self-disclosure. He said he then rejected the self-disclosure and started the enforcement process. Some months later the man was interviewed by FAA management. He was asked why he had rejected the self-disclosure. He asked if his report was read and the answer was yes. He then told management that they now know that the carrier failed to comply with the requirements of the self-disclosure and in the process probably falsified documents concerned with it. FAA management said incredibly ”well we want to encourage self-disclosures and if we keep denying them we will not continue to get self-disclosures …”

The case was eventually terminated with a substantial reduction in fine that was probably never collected. The inspector has since left the FAA. There was clearly an attempt to intimidate the inspector and according to him it went on all the time.

There are three basic requirements for immunity in filing a self-disclosure.

  1. The violation must be immediately reported to the FAA and before it learns of it by other means,
  2. The violation must be inadvertent,
  3. And the violation must not involve a qualification issue. None of these requirements were met in the example cited. Even so, there is no guarantee of immunity.

Web-based reporting
Today, all carriers are required to file their self-disclosures via the Internet, so that there is no delay. They can of course follow up with a report to their PI after the Internet report is sent. In both the SWA and AA cases the self-disclosure was filed after the FAA was aware of the discrepancies. So there most likely would be no immunity available. However, it never hurts to file a self-disclosure even when the FAA finds out before the carrier.

As the SWA investigation was continuing the FAA instituted a “Special Emphasis Validation of Airworthiness Directives“ in order to do a quick check of current AD compliance with all air carriers. A series of ADs at each carrier was audited for compliance. AA was focused on with respect to a particular AD involving a cable wear problem due to chafing. This was significant at AA because it affected almost half of its fleet.

The following summary of the AA problems with the wiring AD is instructive to us all because of the detail that FAA said was ignored in complying with the AD.

The AD problem at American Airlines
Now here we go to the other extreme. American Airlines had wiring problems on its MD80s big time according to the FAA. As if by magic FAA inspectors now said that the wiring in some AA aircraft was below the standard of a particular Airworthiness Directive that required the work. (AD2006-15-15). The AD had been complied with. The airworthiness directive concerned protecting a cable from chafing against bolts on the airframe which could remove insulation and could create sparks in the area concerned. (No sparks or fires were ever reported by AA during operation of its aircraft.) The AD required that the cable simply be sheathed to protect against chafing and to secure it firmly. Not a particularly difficult task. Unfortunately the AD applied to almost half its fleet of MD80’s which were finally grounded by the company under threat of grounding by the FAA. As we all know, there was a huge loss of revenue and good will with the flying public by the cancellation of hundreds of flights.

Was this really necessary, or was it simply the FAA covering its rear by changing the way it was doing business because of the SWA revelations?

Similar understanding
Similar to events at SWA, the people in charge at American thought they had negotiated an extension of time to correct the minor sheathing attach problems (and not grounding half of their fleet). Again as in the SWA case, it was not in writing. Staff at American said that the aircraft had flown for more than 20 years without a chafing problem and could easily have flown for a while longer with the minor variations in the new methods of protection until fixed. This was also supported by none other than John Goglia, former member of the NTSB, who agreed with the American people. It would appear that this action was totally uncalled for and reflects badly on the people who are at the top at the FAA.

Total nonsense by FAA
To show what nonsense the FAA action was, this is what it was concerned about . . . the AD called for tie wraps around the new sheathing at 1-inch intervals along the cable . . . the AA tie wraps were spaced about 1.25 inches apart. (An FAA inspector actually measured the distance.) However, because of this complaint by the FAA the airline requested and received an AMOC from the Long Beach Aircraft Certification Office (ACO), to allow this slight increase. The aircraft were still grounded. It seems the FAA actions make no sense and swing from one extreme to the other where enforcement is concerned.

The inspector also cited AAL for having some clamps that were securing the cable facing the wrong way. Because of these two key items the fleet was grounded. Here we have governmental stupidity at its finest! What more can we expect from such nonsense …?

Air Transport Association Safety Chief, Basil Barimo said it most succinctly . . . ”if aircraft are going to be put on the ground it should be because of legitimate safety concerns, and not just because of some administrative constraints.”

Be careful and watch out for the administrative constraints. Comments to aerolaw@att.net.

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He worked with Western Airlines and the Allison Division of GMC in Latin America, servicing commercial and military overhaul activities and is a USAF veteran. E-mail: aerolaw@att.net

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