Regulators Working to Get Boeing Dreamliner Back in the Air

Catherine Dunn

Corporate Counsel

01-22-2013

Boeing 787 Dreamliners have been grounded all over the world by the functioning of a lithium-ion battery. And in the wake of an emergency airworthiness directive [PDF] from the Federal Aviation Administration, it’s now up to international regulators and the airplane’s maker to figure out a solution.

So what are regulators looking for at this point? And what would it take for the jumbo jets to come into compliance and be deemed ready to fly again?

“This airworthiness directive will be complied with once acceptable fixes are decided, made, and then re-certified by the FAA,” says Motley Rice partner Mary Schiavo, former inspector general of the U.S. Department of Transportation. She estimates that an investigation that examines Boeing and its suppliers could “take weeks.”

One thing she says people don’t realize is how much we rely on companies like Boeing to self-inspect and self-certify planes. Schiavo notes that while FAA inspectors participate in “key milestone events” in the design and assembly of an airplane, aircraft are “largely self-inspected” by their makers. “People assume the FAA is at every point in the assembly line,” she says. “They’re not.”

Emergency airworthiness directives (ADs) such as this one are rare. But these directives in general are common. “ADs are issued almost every day, against one or more airplane types,” says former FAA attorney Gary Garofalo, a name partner at the aviation law boutique Garofalo Goerlich Hainbach in Washington D.C.

In fact, it’s often companies that issue alerts, known as mandatory service bulletins, which the FAA then uses “as the basis for airworthiness directives,” according to Garofalo.

“The other thing to note here is ADs are not adversarial, generally speaking,” he adds. “Boeing is in there cooperating as much as they can.”

Michael Brown, who spent 22 years as a FAA aviation safety inspector, agrees. “ADs are generally coordinated between the parties involved,” he says, and their purpose is “to get information out, to get the fix as quickly as possible.” Retired from the FAA since 2009, Brown still teaches at the FAA Academy in Oklahoma City. He expects that both FAA regulators in Washington State (where Boeing is headquartered), together with representatives from the company, are “working on it diligently.”

Regulators work together, too. Between the FAA and the National Transportation Safety Board, an independent investigative body, “for the most part, it’s a cooperative effort,” says Brown. The agencies share a focus on safety, but have two distinct functions: The NTSB’s responsibility is to determine the cause of an incident or accident, and to make recommendations; it is the FAA’s responsibility, ultimately, to determine what action to take.

As Schiavo puts it: “The NTSB can only recommend, and the FAA has to act.”

At an international level, regulators are accustomed to taking cues from one another, and working together. As Gary Halbert, former NTSB general counsel, tells CorpCounsel.com in an email: “The civil aviation authorities of the United States and Japan have a close working relationship founded on years of exchanges and cooperative activities.”

Halbert, now a partner at Holland & Knight in Washington, DC, says that in the Dreamliner case, “We can expect them to once again work closely together. As for accident and incident investigation, the Japan Transport Safety Board and the U.S. National Transportation Safety Board have an especially close working relationship.”

Once a solution is determined, “More than likely, Boeing would issue some kind of mandatory service bulletin [MSB] that would stipulate how the fault will be corrected,” Brown explains. Then, he says, the FAA would issue another airworthiness directive, requiring compliance with the MSB.

Schiavo expects to see some additional safety precautions adopted once the investigation is complete. “My guess is the FAA will require additional shielding of that battery,” she says, which would contain leaking chemicals, smoke, fire, and heat.

Although it depends on how contracts are worded, Boeing is most likely responsible for the costs to the airlines of cancelled flights and getting replacement planes. “What they might do, and what they’ve done in the past, is give them credits on future purchases.”

Ultimately, Schiavo thinks the Dreamliner investigation is “going to be tremendously fortunate for Boeing . . . When that plane goes back up, it’ll be a much a better plane.”