AVIATION (TYPE CERTIFICATES & SPECIAL CONDITIONS) / FAA Testimony to Congress – FAA Associate Administrator Margaret Gilligan testified before the Aviation Subcommittee of the U.S. House of Representatives Committee on Transportation and Infrastructure about the 787 lithium-ion battery system matter. This testimony in my view raised a critical question about the operative status of “DO-311, Minimum Operational Performance Standards for Rechargeable Lithium Battery Systems” as adopted in 2008. I have an e-mail inquiry pending with the FAA’s Deputy Assistant Administrator for Public Affairs on this and will follow up with readers when and as I receive a reply.

Testimony is available here.

NTSB INVESTIGATION OF BOSTON LOGAN 787 LITHIUM ION BATTERY COMBUSTION / As earlier announced all five members of the NTSB Board held two days of a formal hearing in furtherance of the NTSB’s investigation of the Boston Logan incident. In a brief but noteworthy wrap-up after the second day, NTSB Chairman Herseman made two noteworthy statements: (1) “[W]e do not know the cause of the JAL battery failure”; and (2) the following questions remain “just as pressing” after the two days’ hearings – “[1] how best to certificate emerging technology to ensure safety, and [2] whether the certification process is flexible enough to incorporate new knowledge”.

As I observed in the Comments section a few days ago on this subject, the FAA’s April 19 press release announcing that, “the FAA will issue instructions to operators for making changes to the aircraft and will publish in the Federal Register the final directive that will allow the 787 to return to service with the battery system modifications”. 

And consistent with that the FAA followed up April 26 with an airworthiness directive in the Federal Register reported in this blog here 

Where do the above two developments – the April 26 airworthiness directive and the NTSB’s two days of hearings on April 22 and 23 – leave the flying public? 

1. The NTSB expressly acknowledges that it has reached no conclusion as to the cause of the combustion incidents occurring to the 787 lithium ion battery system, and that the Japan Transport Safety Board had not reached any  conclusion on the matter either (the two incidents occurred with 787’s registered on the Japanese air registry. 

3. In the April 19 press release and the April 26 airworthiness directive at least the FAA does not offer any conclusion on the cause nor does it state any intent to so conclude at any future time. 

4. The FAA in the April 26 airworthiness directive acknowledges the existence of an “unsafe condition” with respect to the 787 lithium ion battery system, and acknowledges the same with respect to its earlier airworthiness directives relating to the matter. 

5. The airworthiness directive is in the form of a final rule: “… [W]e find that notice and opportunity for prior public comment are impracticable and would defeat the Agency’s [FAA’s] regulatory objective, and that good cause exists for making this amendment [i.e., airworthiness directive that supersedes a prior one, as earlier amended] effective in less than 30 days.” 

6. The airworthiness directive, although acknowledging (as all airworthiness directives do) a “dangerous condition”, does not assert that such airworthiness directive will render the aircraft system to be actually safe: In the FAA’s words, the airworthiness directive “will address the unsafe condition”. 

7. “The purpose of the [airworthiness directive] is to allow the aircraft to return to service as soon as possible by mandating a modification that will address the unsafe condition.” 

The above summary is based upon my own careful reading and re-reading of FAA and NTSB statements of the past 10 days. In particular note: 

1. The disconnect between the NTSB’s own reservation of judgment following its April 22 and 23 investigative hearing versus what amounts to an FAA green light to fly the 787 without concluding what the problem was in the first place is set forth in the official documents. 

2. Also note the FAA’s statement that the decision to issue this airworthiness directive and allow the 787 to operate – without having concluded what caused the combustion incidents – is a function of commercial factors combustion (“The purpose of this AD is to allow the aircraft to return to service as soon as possible by mandating a modification that will address the unsafe condition.”). 

AVIATION (FAA AIRWORTHINESS DIRECTIVE & 787 LITHIUM ION BATTERY SYSTEM) / FAA airworthiness directive for Boeing 787 lithium ion battery systems problem.

“Airworthiness Directives; The Boeing Company Airplanes.” 

April 26, 2013. Final Rule; Request for Comments

In the context of the Boeing 787 lithium ion battery combustion problem, recent NTSB investigation of that matter, and the FAA’s own express statements about this problem – notably what the FAA did not state about whether this problem has actually been solved – this airworthiness directive raises significant questions. See entry in this week’s New Rules & Decisions under “C. TOPICS BY AGENCY INITIATIVE / NTSB Investigation of Boston Logan 787 Lithium Ion Battery Combustion”.

REMARKS – Federal Aviation Administration announces approval of 787 battery system design changes to be formalized in airworthiness directive form next week in the Federal Register, and to contain, “instructions to operators for making changes to the aircraft”. COMMENT: This is a major turn of events and was just announced Friday April 19 – It raises four questions for eventual answer: (1) What was the problem and what is the fix (presumably the airworthiness directive next week will address this)? (2) What’s the NTSB’s posture on this – by its 5-member board it held a 2-day symposium of experts earlier this month and the same full board holds on April 22 and 23 April an investigative forum on the 787 Boston Logan fire? (3) What implications does the FAA and National Transportation Safety Board see in these circumstances for adherence to the 2008 testing standard of the Radio Technical Commission for Aeronautics that this battery system by-passed (until after the combustion incidents) – and that the FAA adopted in 2011? (4) To what extent will industry and the scientific community have access to the empirical data on which the FAA bases its action here?

FAA press release from Friday April 19, 2013 available here

Like a court’s summary order to be followed by an opinion issued at a later time, the FAA’s Friday April 19 announcement gets to the point without explaining how it got to its conclusion.

And given the history of the last 4 months there a several questions worth giving an answer to:

  1. What went wrong with the battery system and what is the fix?
  2. With the full board of the NTSB in the midst of its own investigation, what is the NTSB’s posture on what the FAA has just decided?
  3. Original testing for the battery system did not adhere to the FAA-mandated battery testing protocol (albeit on adopted 5 months after the issuance of “special conditions” on which the previous battery system was originally approved. 
  4. Is adherence to the Radio Technical Commission for Aeronautics created protocol adopted by the FAA in 2011 now required by the FAA?
  5. Can we test the FAA’s conclusion underlying this decision? Put differently, to what extent will those outside the circle of FAA, Boeing, Thales and GS Yuasa be given access to the empirical data created by the last four months’ testing and investigation following the January grounding of the 787?

AVIATION (NTSB INVESTIGATION) / The National Transportation Safety Board announced an “investigative hearing” to be held April 23 relating to “the Boeing 787 battery and battery charger system” in the context of an smoke and fire coming from the front of an auxiliary power unit battery case on Japan Airlines flight 008 upon its arrival at Boston Logan from Narita.

Note that the NTSB held a two-day “public forum” on lithium ion battery use in auxiliary power units and otherwise in aviation on April 12-13 under the legal status of a “Board of Inquiry”. See blog post here.

This announced investigative hearing referencing the same subject matter in the context of a specific event (787 APU-related combustion on Japan Airlines flight at Boston Logan) is also under the legal status of a “Board of Inquiry”,

“Investigative Hearing” 

April 11, 2013. Notice.

REMARKS / Lithium ion batteries now front & center with the NTSB: Public forum scheduled for April 12-13 with all five members part of a “Board of Inquiry” – both their “use” (e.g., and “shipping” of them. COMMENT: Between multiple earlier “shipping” incidents of combustion in flight, and two recent occurrences of 787 Dreamliner combustion during their “use” in auxiliary power units, the NTSB is taking a leading role in the response – complementing and perhaps superseding the policy role of the FAA.

This past week’s announcement of the public forum caps much NTSB attention to the phenomenon of the lithium ion battery’s risks of combustion during flight. See Federal Register announcement here.

Most recently, the safety agency has taken a high profile role in the aftermath of the lithium ion battery combustion incidents in “use” in auxiliary power units of the 787 at Narita and Logan Airports, respectively. This led to an “Interim Factual Report” on March 7, 2013. See report copy here.

The public forum announced this past week will encompass such “use” in APU’s – but extends also to lithium ion batteries as freight as well (and not restricted to the air cargo context. See agenda released by NTSB with panels and subjects to be addressed here.

Quite clearly this NTSB initiative intrudes upon the subject matter currently the subject of FAA rule-making as regards “shipping” of lithium ion batteries by air. See past posts on this blog here and here.

Case Study: FAA Organizational Designation Authorization Procedures and the Recent Boeing 787 / Lithium Ion Battery System Developments

The Controversy 

The recent developments relating to the Boeing 787 Lithium Ion battery system combustion malfunctions highlight differing views of a National Policy that the FAA created in 2005 called “Organization Designation Authorization Procedures”.

(At least) Two Opposing Viewpoints  

Depending on one’s view, an unsophisticated report by a Seattle newspaper cast the FAA’s and Boeing’s nuanced and carefully managed collaboration as a devious plot to subvert safety regulation – or, alternatively, the news story correctly called it that the FAA here abdicated its function as objective arbiter of airframe design certification in the way that it approved the 787’s Lithium Ion battery system.

A Seattle Times article by Kyung M. Song last Monday, February 4, 2013, charged that, “few may realize that it was Boeing, not FAA inspectors, that largely vouched for the Dreamliner’s safety”. See “FAA Faulted for Outsourcing 787 Safety Checks to Boeing” here.

Mike Rioux, Chief Operating Officer of the respected aviation consultancy JDA Aviation Technology Solutions offered in JDA’s blog a cogent rebuttal to that. He argued that Boeing’s home town newspaper gave a false impression of what is actually a rigorous coverage of the FAA’s Organization Designation Authorization (“ODA”) in the 787’s certification:

“Unfortunately, the article fails to go into sufficient detail to explain the ODA processes that the FAA delegates, after an extensive qualification process, to organizations like Boeing. ODA, in fact, increases the efficiency of FAA oversight through a systems safety management approach. The Boeing engineers now are extremely conscious that they are exercising the powers of the FAA, actually add to the agency’s expertise. In this case, Boeing is required to send its certification plans to the FAA, explaining what it wants to make and how it wants to accomplish the associated designs and testing. In response thereto, the government may add tests, enhance standards or require additional analyses. Then, the FAA may delegate those activities which are subject to the ministerial actions of the company’s employees/FAA designee, ONLY if the company has shown that it has accomplished the specific type of certification testing many times before. Under an ODA when there is anything new and novel, such as the use of Lithium Ion battery system, the FAA must be involved significantly more in both the definition of the tests/analyses and the review of the results.”

See JDA piece here.

If JDA’s Mike Rioux has called this correctly, it would not be the first time that reporter gave an account that was more exciting or alarmist than it was accurate.

The gist of Mr. Song’s piece in the Seattle Times is this:

“That shift toward ‘self-certification’ accelerated during the past decade even as critics say advances in aerospace technologies have created greater need for closer independent scrutiny. Under streamlining begun in 2005, the FAA has granted Boeing in-house oversight for new planes in production and approval of major repairs and alterations.”

Mr. Song cites to a 2011 U.S. DOT Inspector General’s report stating that, “the FAA in one case delegated some 90 percent of the determination for regulatory compliance for new aircraft design to outside representatives”. See U.S. DOT Inspector General report here.

A reading of this report confirms the Inspector General’s account without identifying the manfuacturer.

But Mr. Song unhelpfully observes: “The Inspector General’s Office would not identify the company, but the report focused on Boeing, Cessna Aircraft and Bombardier-Learjet.” “Unhelpfully” because this seems to invite a speculative leap by the reader that the unidentified company really may have been Boeing.

Compounding the “see-the-smoke-there-must-be-fire” vagueness of Mr. Song’s attack on the Boeing-FAA connection in the Organization Designation Authorization program, Mr. Song observes:

“Critics say the FAA’s heavy reliance on manufacturers to attest to the safety of their own products has largely relegated the agency to an administrative role — and has left it without the expertise and manpower to adequately challenge and revise safety standards.

“For example, the FAA allowed Boeing more than three dozen deviations from existing safety requirements for the composite-frame 787 [Emphasis supplied].”

A reading of the 787’s “Type Certificate Data Sheet T00021SE” indeed documents about 40 “Equivalent Levels of Safety” substitutions for named sub-sections of airworthiness standards (14 Code of Federal Regulations Part 25 “Airworthiness Standards: Transport Category Airplanes”). See FAA document here.

But the article fails completely to explain how – if at all – such departures amount to lower safety standards. Again, a vague “see-the-smoke-there-must-be-fire” attack on the Boeing-FAA collaboration in the context of the FAA’s Organization Designation Authorization program as it was applied in the 787’s development and eventual certification.

So what? 

So the Seattle Times article did not begin to prove its innuendo that the Boeing-FAA Organization Designation Authorization collaboration dealt a setback to safety regulation in the case of the 787’s certification.

But the story of the 787’s certification still illustrates a major vacuum in safety regulation: There is a conflict of interest built into the Organization Designation Authorization – at least as the FAA implemented it here under the current federal statute.

The federal statute on which the program is based allows the FAA to delegate specified certification duties to “a qualified private person, or to an employee under the supervision of that person”. 49 U.S. Code § 44702 (“Issuance of [airworthiness] certificates”). Such delegation is allowed in the issuance of “type certificates, production certificates, [or] airworthiness certificates”.

But the statute places no limits whatsoever on the connection between such “qualified private person” or “employee”, on one hand, and the applicant for a certificate, on the other. Put another way, it is possible – and it was the case in the 787 certification – that the “qualified private person” or its “employee” under the federal statute is on the payroll of the applicant for the certificate under review.

Here is where the concern over the FAA’s Organization Designation Authorization program is well placed. Western culture has long held that “no man can serve two masters”. This insight has been incorporated into multiple professional and fiduciary protocols where an individual possessing needed expertise might at the same time be tempted by personal circumstances to alter his or her untrammeled trained judgment.

When I was an executive at Whirlpool and later GE I worked with competent and honest internal audit staff every year. But to agree with the Securities Act of 1934 that a public company’s financials should be certified by an outside group of CPA’s who are not on the payroll of the reporting issuer does not say that I lack confidence in the expertise or ethics of those internal audit colleagues. It is, however, to say that an individual dependent upon the security issuer for his or her salary and benefits is not well suited – by virtue of that position – to be consistently objective in rendering what amounts to a financial report card of his or her employer.

As a lawyer I am not allowed to represent two sides of a conflict simultaneously. Similar rules apply to accountants, financial fiduciaries, etc.

You get the idea.

Next Steps 

As I write this post it looks like a so-called “sequester” will soon drastically reduce certain non-entitlement government functions. Like the Department of Defense and EPA, the FAA is one of those budgets that is and will become increasingly vulnerable to fiscal pressures.

Our country’s aviation system needs the most rigorous evaluation of airframe and engine safety evaluation feasible. But funding pressures are pressing hard in the opposite direction.

So in the words of 49 U.S. Code § 44702 the aviation safety system needs the aid of “qualified private person[s]” for the aircraft certification process.

But we need to clearly separate judgments of safety evaluation from the personal pressures that might bear on those human beings who make those judgments on the FAA’s behalf.

To the extent the Seattle Times piece is read to contend that Organization Designation Authorization Procedures as applied to the 787 Lithium-Ion battery certification brought a reduced level of expertise to bear on the safety evaluation, Mr. Song’s article misses the mark and Mr. Rioux’s critique is apt.

But human nature is identical for lawyers, accountants, financial fiduciaries – and for the engineers and other experts involved in the issuance of airworthiness certificates under 49 U.S. Code § 44702.

It is unrealistic to expect objectivity from someone passing judgment on an application that has been brought to the FAA by the organization that pay’s that person’s salary and benefits. 49 U.S. Code § 44702 provides suitably for expertise, but it should be amended to assure an impartial judgment by the expert who is delivering that expertise.