Significant Regulatory & Related Activity

Wed, Jan 27, 2010 — David Evans

Featured, Regulatory & Other Items

Among the noteworthy regulatory actions, the NTSB has published a final rule on accident and incident reporting, covering six cases where operators must submit a report to the NTSB.

4 January 2010      Pipeline & Hazardous Materials Safety Administration (PHMSA)

Docket Nos. PHMSA-2007-0065 & PHMSA-2008-0005

Final Rule, corrections, Safe Transportation of Batteries

(Full title: Hazardous Materials – Revision to Requirements for the Transportation of Batteries & Battery-Powered Devices; & Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, & International Civil Aviation Organization’s Technical Instructions)

Marking now required on shipments of batteries.

Marking now required on shipments of batteries.

Publishes revisions, clarification and amendments to the final rule issued 14 January 2009. These changes harmonize the rule with international standards regarding proper shipping of batteries and electronic devices fitted with batteries. In addition, this rule correction responds to appeals lodged on the 2009 rule.

This rule responds to National Transportation Safety Board (NTSB) recommendations dated 17 December 2007. Those recommendations resulted from the board’s investigation of a UPS DC-8F fire that consumed the airplane after it landed, on fire, at Philadelphia in February 2006. While the cause of the fire could not be determined, lithium batteries were found in the blackened wreckage of the main cargo deck.

The UPS freighter fire; lithium batteries were found in the charred innards of the airplane.

The UPS freighter fire; lithium batteries were found in the charred innards of the airplane.

In its 8-page letter to PHMSA, the safety board distinguished between primary and secondary lithium batteries. Primary batteries, used in cell phones and laptop computers, if on fire, can be extinguished by Halon suppression systems. Secondary lithium batteries, which are sealed in a metal case, cannot be suppressed by Halon if they catch fire. In its letter to PHMSA, the safety board said:

“(T)he Safety Board concludes that flight crews on cargo-only aircraft remain at risk from in-flight fires involving both primary and secondary lithium batteries. The Safety Board believes that the Pipeline and Hazardous Materials Safety Administration (PHMSA) should require aircraft operators to implement measures to reduce the risk of primary lithium batteries becoming fires on cargo-only aircraft, such as transporting such batteries in fire resistant containers and/or in restricted quantities at any single location on the aircraft. The Safety Board further believes that, until fire suppression systems are required on cargo-only aircraft, as asked for in Safety Recommendation A-07-99, PHMSA should require that cargo shipments of secondary lithium batteries, including those contained or packed with equipment, be transported in crew-accessible locations where portable fire suppression systems can be used.”

Of interest, recommendation A-07-99 to the FAA is still in an open status – it has not been implemented, hence its classification by the NTSB as “Open – Acceptable Response.” This characterization is generous, to say the least, as the FAA response was definitely noncommittal:

“We will review the guidance on Class E cargo compartment fire protection and operators’ cargo compartment fire containment procedure to determine the effectiveness of the fire protection …”

The Air Line Pilots Association (ALPA) offered a significant reservation about the overall effort to improve the safety of lithium battery shipments:

“ALPA is largely supportive of both the battery provisions and harmonization efforts, recognizing that this rulemaking does not cover lithium ion or lithium metal batteries. We continue to have significant concerns about the transport of these batteries on aircraft and look forward to future rulemaking, as well as working with the Department of Transportation’s Battery Enterprise Group to promote the safe transport of lithium ion and lithium metal batteries.”

In other words, there is more work to be done if any and all lithium battery shipments are to be conducted safely.

As PHMSA says of its 12-pages of clarifications and amendments:

“None of the clarifying or conforming amendments are new requirements but provide for a better understanding of the requirements adopted in the Jan. 14, 2009 final rule.”

Effective date of these corrections and amendments: 4 January 2010.

As an example of the magnitude of the battery shipment hazard, below is an extract from an FAA report; just a few of the 100+ entries are shown:



7 January 2010                          National Transportation Safety Board (NTSB)

49 CFR Part 830

Final Rule, New Accident/Incident Reporting Rules

(Full title: Notification and Reporting of Aircraft Accidents or Incidents and Overdue Aircraft, and Preservation of Aircraft Wreckage, Mail, Cargo, and Records)[Note: This final rule includes helicopters.]This final action completes a rulemaking activity begun 27 December 2004 to update and rationalize the reporting of aircraft accidents and incidents to the NTSB. Although numerous comments on the proposed rulemaking were submitted by industry, the Federal Aviation Administration (FAA) had no comments – yet it is directly affected by the NTSB action and has reporting requirements of its own. Partly as a result of the failure of the FAA to comment, this final rule perpetuates some disconnects between what operators must report to the NTSB and what they are required to report to the FAA. As a consequence, the FAA and NTSB databases will differ.This is on top of the trend (or habit) within the FAA to discuss fatal accidents only, whereas the NTSB discusses fatal accidents, non-fatal accidents and non-fatal incidents in its public pronouncements about the state of aviation safety.This final rule codifies the addition of six reportable incidents, which the NTSB believes are necessary to plug gaps in the existing data base.

Operators will now be required to report the following:

1. The failure of any internal turbine engine component that results in the escape of debris other than out the exhaust path. This will therefore cover those cases of an uncontained failure, which can punch through the protective walls around an engine and penetrate vital components in the wing and/or fuselage.In its comment, the General Aviation Manufacturers Association (GAMA) noted there is “already” a requirement to report to the FAA: “GAMA would propose a reporting system between the FAA and the NTSB that would alert both agencies when one of the reportable events occurs.

The NTSB disagreed, noting that “a report to the FAA is not required if the event has been reported to the NTSB.” This phrase seems to be backward, and would better read, “a report to the NTSB is not required if the event has been reported to the FAA.” This wording would make the following sentence in the final rule more logical: “[A] notification system … that initially reports failures to the FAA presents an unacceptable delay in the notification to the NTSB and the initiation of a response.”

Queried about this disputation, an NTSB official said, “We need to know initially.” Still, GAMA seems to be making a reasonable point.

2. The release of all or a portion of a propeller blade. This failure does not include contact solely with the ground, which may cause propeller breakage. The intent here is to capture those propeller failures resulting from metal fatigue, mechanical failure and other factors associated with the propeller and its associated control mechanisms. It is understood that ground contact would cause the propeller to break off, and the NTSB is not interested in those cases.

The NTSB explained its rationale thusly: “Propeller blades are designed and certified to operate within the atmosphere and, as such, the expectation is that they remain intact and in place during normal operation. Propeller blades are not designed or expected to continue to remain intact and in place following contact with the ground.”

3. A complete loss of information, including flickering, from more than 50% of an aircraft’s cockpit displays. This information includes that shown on Electronic Flight Instrument System (EFIS) displays, Engine Indication and Crew Alerting System (EICAS) displays, Electronic Centralized Aircraft Monitor (ECAM) displays, or (here’s a nice catch-all) other such displays.

The NTSB has investigated cases where the electronic instrument displays have gone blank, and this reporting proviso is intended to capture such events for the databases.

It is not entirely clear how the 50% rule was derived, other than perhaps to capture those events where either the captain or first officer’s displays go blank. However, there are cases where both the captain’s and the first officer’s ADI (attitude director indicator) go blank. It matters which 50% is lost, but the ruling as it reads right now may be as far as the NTSB can go, as it has been modified to spell out loss of ELIS, EICAM and ECAM displays. This is more specific than the original proposal.

The Air Line Pilots Association (ALPA) wrote that the term “flickering” was too subjective: “Does the NTSB consider one ‘flicker’ acceptable, but constant ‘flickering’ unacceptable, and therefore reportable?”

The NTSB replied, “If the ‘flickering’ becomes so severe that the display is unusable, then it should be reported … (providing that over 50% of the displays were similarly unusable).”

4. Airborne Collision Avoidance System (ACAS) resolution advisories issued by the system either (a) when an aircraft is being operated on an instrument flight rules (IFR) flight plan and compliance with the advisory is necessary to avert a substantial risk of a mid-air collision between two or more aircraft, or (b) to an aircraft operating in Class A airspace.

Despite numerous comments that this would impose a burdensome reporting requirement, the NTSB stuck to its guns, modifying the original proposed language slightly, but basically saying airplanes under IFR or Class A airspace should report near mid-air collisions. The NTSB said it never intended to require reporting “where no substantial risk of collision exists.”

5. Damage to helicopter tail or main rotor blades, including ground damage, that requires major repair or replacement of the blades.

No public comments were lodged on this new reporting requirement. It will be implemented as originally proposed.

6. Any event in which an aircraft operated by an air carrier (airline) lands or departs on a taxiway (yes, this has happened), incorrect runway (ditto), or other area not designated as a runway. In addition, runway incursions must be reported in which the operator or crew of another vehicle or aircraft must take immediate corrective action to avoid a collision.

This final language was adopted in apparent response to the ALPA recommendation: “Experiences a reduction in separation between another aircraft and/or ground vehicle that requires immediate corrective action, excluding a go-around.”

The new reporting requirements take effect 8 March 2010. Thus, it will take six years from the first notice of proposed rulemaking to effect changes the NTSB considers essential – and differences still remain with the FAA.

20 January 2010                          Federal Aviation Administration (FAA)

Docket No. FAA-2010-0029            AD 2009-21-10 R1

Final Rule; request for comments; AVOX Systems and B/E Aerospace Oxygen Cylinder Assemblies, as Installed on Various Transport Airplanes

This airworthiness directive (AD) removes oxygen bottles with certain part numbers from the requirements of the first AD. The original AD (2009-21-10), which was effective 17 December 2009, was issued in response to the bursting of an oxygen bottle on a Qantas B747-400 airliner, which punched a hole in the fuselage. The compromise of fuselage integrity caused a loss of pressurization, and required the crew to forego their Hong Kong to Melbourne flight and conduct an emergency landing at Manila in July 2008. (see Aviation Safety Digest, ‘Ruptured Oxygen Bottle Led to Emergency Landing’)

The missing oxygen cylinder on the Qantas B747, which burst with a BANG, rattled around inside the airplane, then punched a hole in the fuselage and fell 29,000 feet to the Pacific Ocean.

The missing oxygen cylinder on the Qantas B747, which burst with a BANG, rattled around inside the airplane, then punched a hole in the fuselage and fell 29,000 feet to the Pacific Ocean.

We must comment here on the evident regulatory lassitude. It took roughly 17 months for the FAA to take its first action, in apparent response to oxygen bottles that had been improperly heat treated. Then, despite the evident cause behind this explosive incident, the FAA allowed fully 90 days to inspect and remove faulty bottles. And now it eliminates inspection of some bottles, well after the original inspection was supposed to have been made.

The FAA explains: some oxygen bottles in the original AD are manufactured from composite material, not steel, and “the erroneous part numbers do not correspond to any serial numbers listed in the AD.”

Basically, this revision to the original AD involves a bit of administrative clean up. Note that this is all occurring about a year and a half after the near-catastrophic event. It is heartening to observe the FAA is right on top of this situation with timely action.

The revised AD is effective 4 February 2010.

Comments are due 8 March 2010.


20 January 2010                          FAA

FR Doc 2010-927                        Summary Notice No. PE-2009-62

Petition for Exemption, Boeing B747-8 airplane

The FAA seeks comments on a Petition for Exemption submitted by Boeing for relief from the requirements of 14 CFR 25.981(a)(3) regarding fuel tank structural lightning protection. Boeing’s petition deals with certification of its new B747-8 and -8F airplane, which is an advanced version of its venerable B747 widebody design.First, let’s recall what 14 CFR 25.981(a)(3) says:

“(a) No ignition source may be present at each point in the fuel tank or fuel tank system where catastrophic failure could occur due to ignition of fuel vapors. This must be shown by:

(3) Demonstrating that an ignition source could not result from each single failure, from each single failure in combination with each latest failure condition not shown to be extremely remote [one in a billion likelihood], and from all combinations of failures not shown to be extremely improbable [one in one hundred million]. The effects of manufacturing variability, aging, wear, corrosion, and likely damage must be considered.”

And subparagraph (c) says:

“(T)his section does not apply to a fuel tank if means are provided to mitigate the effects of an ignition of fuel vapors such that no damage caused by an ignition will prevent continued safe flight and landing.”

These requirements were added after the center wing fuel tank explosion downed TWA flight 800 in 1996. The TWA jet was a B747-100.

To meet this requirement, recall that fuel tanks with adjacent heat generating sources – such as air conditioning packs – located below the B747-100 through -400 center wing tanks – must be retrofitted with an inerting system to fill the void spaces with nitrogen enriched air.

Boeing appears to be requesting relief from the requirement to install an inerting system for the heated center wing tank on the B747-8, saying, in part:

“Boeing proposes to enhance the lightning protection by incorporating additional fault tolerant protection for fasteners in areas of potential swept lightning attachment … by cap sealing the fasteners to contain a possible spark in the event that the primary protective features fail, thereby increasing the level of fuel tank safety. [This sounds very similar to the improved fastener installation touted for the new B787, which is an all-composite design; this airplane will feature an inerting system as another layer of fuel tank protection because the composite construction will not necessarily keep lightning bolts from penetrating the fuel tanks. The B747-8, however, will feature aluminum construction. See Aviation Safety Journal, ‘Lightning Strike Standards Now Difficult to Discern’]

“Testing will show that the fastener installation will be safe for applicable lightning zone requirements and will not produce any sparks inside the fuel tanks …

“Requiring the 747-8/8F to attempt to directly comply with this rule would significantly inhibit Boeing’s ability to design and certify the airplane on a competitive schedule.”

Boeing's new 747-8 will come in a passenger and a freighter version. The aircraft is a stretched 747 with major improvements.

Boeing's new 747-8 will come in a passenger and a freighter version. The aircraft is a stretched 747 with major improvements.

Since the B747-8 will feature a center wing tank, how is the requirement for inerting circumvented? The key seems to be that the tank is unheated, i.e., that it will not have air conditioning packs located underneath. The heat generated by these packs migrates up into the center wing tank, warming the fuel-air vapors and making them more explosive.

How is Boeing keeping the tanks unheated? They have eliminated the under-lying air conditioning units. Eliminating the need to use air-cycle heat exchanger units to cool engine bleed air for the cabin would mean that the problem of heated ullage (fuel-air vapor) should no longer exist. The B747-8 appears to avoid the use of engine bleed air by going to electric compressors for cabin air.

Thus, the center-section fuel tank ullage should be less vulnerable to ignition from any cause. However, lightning is a special case requiring the 100% integrity of discharge pathways – throughout the fuselage, empennage and wings. For this reason, paragraph (d) of the regulations says:

“Critical design configuration control limitations (CDCCL), inspections, or other procedures must be established, as necessary, to prevent development of ignition sources within the fuel tank pursuant to paragraph (a) of this section …”

While Boeing’s petition does not reference the CDCCL term specifically, it does mention that additional lightning protection measures could actually inhibit safety:

“Additional features to directly meet the rule are impractical … and would potentially add significant cost, weight, and maintenance to the airplane without a measurable safety benefit. Further, additional lightning protection features could inhibit the ability to inspect the structure (reducing safety).”

Well, this argument applies to every plane equipped with an inerting system/

The fact that nearby heat sources have probably been eliminated from the design of the 747-8 as a reason to forego inerting has precedent. Airbus argued that its new double-decker A380 had no heat sources near its fuel tanks and therefore the weight, complexity and maintenance associated with an inerting system was not necessary. This argument was accepted by regulatory bodies on both sides of the Atlantic and the A380 was certificated without an inerting system.

Comments on Boeing’s petition are due 9 February 2010.

21 January 2010                          FAA

FR Doc 2010-1044                       Docket No. FAA-2010-0041

Notice of Proposed Rulemaking (NPRM), Airworthiness Directive for Airbus A330 & A340 airliners

An airworthiness directive is proposed based on a European regulatory initiative to ensure that speed readings are correct on the affected airplanes. Recall that an incorrect speed reading from a clogged pitot tube is a possible (and likely) cause of the loss of an Air France A330 1 June 2009 on a flight from Rio de Janeiro to Paris, killing all 228 persons aboard. The French investigation into that tragedy regarding Air France flight 447 is ongoing, but pitot tubes manufactured by Thales have been ordered replaced on two of three locations, on the grounds that the Thales probes have shown to be more susceptible to ice blockage that probes supplied by Goodrich. (See Aviation Safety Journal, ‘Prompted by Crash, Airworthiness Directive Issued on Pitot Probes’)

There are three pitot assemblies on the A330/A340. Both Thales and Goodrich supply the probes, and now ADs address problems with both.

There are three pitot assemblies on the A330/A340. Both Thales and Goodrich supply the probes, and now ADs address problems with both.

Now action is proposed for the Goodrich supplied probes. According to the NPRM:

“Several reports have recently been received of loose pneumatic quick-disconnect unions [joints] on Goodrich pitot probes … These may be the result of mis-torque of the affected unions [joints] at equipment manufacturing level. Investigations are still on-going to determine the root cause(s).

“This condition, if not corrected, could lead to an air leak, resulting in incorrect total pressure measurement and consequent erroneous calibrated airspeed/MACH parameters delivered to the Air Data Computer (ADC). [This is precisely the favored scenario behind the departure from controlled flight and subsequent loss of Air France flight 447.]

“Loss or fluctuation of indicated airspeed could result in misleading information to the flight crew.”

In other words, the situation surrounding first Thales and now Goodrich pitot probes goes to the heart of what is drummed into every student pilot: trust your instruments. No, they cannot be trusted if the speed sensing is in error.

The European Aviation Safety Agency wants the integrity of the Goodrich pitot fittings checked out within 5 days. The FAA proposes allowing 14 days for the check. Given the absolute need for accurate speed readings, 5 days seems more in line with the criticality of the situation.

Comments on the NPRM are due 8 March 2010.

Comments are closed.

Nolan Law Group