Report on Aviation Safety

ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

AERONAUTICS COMMITTEE

REPORT ON AVIATION SAFETY

June, 1998

TABLE OF CONTENTS

I. INTRODUCTION 1

II. OVERVIEW 2

A. The Aviation Industry in the United States 2

B. Regulation of the Aviation Industry 3

C. How Safe is Flying ? 4

D. Potential Liability Issues 5

III. CONTROLLED FLIGHT INTO TERRAIN 6

A. Problems 6

B. Solutions 8

IV. PILOT TRAINING 10

A. Problems 10

B. Solutions 11

V. LANGUAGE BARRIERS 14

A. Problems 14

B. Solutions 15

VI. THE AIR TRAFFIC CONTROL SYSTEM, AIR TRAFFIC CONTROLLERS AND THE YEAR 2000 ISSUE 17

A. Problems – Air Traffic Control System and Air Traffic Controllers 17

B. Solutions – Air Traffic System and Air Traffic Controllers 19

1. ATCS Privatization 19

2. Liberating the Federal Aviation Administration 23

3. “Free-Flight” 24

C. Problems – The Year 2000 Issue 27

D. Solutions – The Year 2000 Issue 29

VII. AIRCRAFT PARTS: “BOGUS” OR “UNAPPROVED” 31

A. Problems 31

1. Background 31

2. The Scope of the Parts Industry 33

3. Current Parts Regulation 34

B. Solutions 35

VIII. FLIGHT DATA RECORDERS: A CASE STUDY – LOSS OF CONTROL OF 737s 37

A. Problems 37

B. Solutions 37

IX. HAZARDOUS MATERIALS 40

A. Introduction 40

B. Problems 42

C. Government Response 43

D. Comments/Conclusions 44

X. THE VALUJET MICROCOSM 45

A. The FAA’s Political Volatility 46

B. The Dual Role Conflict 47

XI. TERRORISM 51

A. Introduction 51

B. Problems 52

C. Early U.S. Responses 55

D. Responses under the Clinton Administration 57

E. Comments/Conclusions 58

XII. TWA FLIGHT 800 62

A. Explosive Fuel/Air Mixtures and Potential Ignition Sources Inside Fuel Tanks 63

B. Aging Fleet 68

XIII. CONCLUSION 72

NOTES

INTRODUCTION

One of the most important public issues today is the issue of aviation safety. Newspapers, periodicals and many news broadcasts blanket the public with alternate reports on increasing safety or the absence thereof. Recently, the Aeronautics Committee of the Association of the Bar of the City of New York sponsored a public forum addressing various safety issues facing the aviation industry. This report is an outgrowth of the forum, and expands on many of the topics discussed there. The report begins with an overview of the air travel industry including the applicable regulatory structure and a statistical analysis of the safety hazards inherent in flying. Although air travel is among the safest ways to travel and grows continously safer even as air traffic increases, a number of problems persist. This report deals with some of those problems. It considers the following significant issues of aviation safety: (i) a common cause of aircraft accidents — controlled flight into terrain; (ii) the importance of pilot training in reducing aircraft accidents; (iii) the problem of language barriers between pilots and air traffic controllers; (iv) the existing problems affecting the air traffic management system and air traffic controllers, including the Year 2000 issue; (v) bogus or unapproved aircraft parts; (vi) the role of flight data recorders in aircraft accident investigation and prevention; (vii) the transport of hazardous materials; (viii) the recent Valujet disaster and some of the issues it brought into the public spotlight; (ix) the problem of terrorism as it affects airline travel; (x) explosive fuel/air mixtures and potential ignition sources inside fuel tanks; and (xi) aging aircraft issues brought into the forefront by the destruction of TWA Flight 800. The subject of aviation safety in general and the foregoing safety issues in particular have important legal implications for airlines, airline passengers and regulatory agencies both in terms of responsibility for aviation safety measures and liability for aircraft accidents. This report will explore these issues, review current safety measures and liabilities and make recommendations for improvements in aviation safety.

OVERVIEW

The Aviation Industry in the United States

Air travel in the United States is an enormous industry. There are more than 35,000 aircraft flights in this country each day1, with an active aviation fleet of more than 180,000 aircraft.2 However, out of the 180,000 airplanes, only 5,000 are airliners. The airlines operate out of approximately 600 airports, with 75% of their operations out of only 30 “hub” airports. In total, though, there are 17,000 public use landing sites in the United States.3 The National Transportation Safety Board (the “NTSB”) has reported that our air traffic control system handles over 220 million flight operations annually.4 The aviation sector currently contributes about 6% to the United States Gross Domestic Product, and could contribute an additional $100 billion by the year 2007.5 The industry as a whole supports 8 million jobs in this country.6 The Federal Aviation Administration (the “FAA”) estimates that air travel will double over the next 20 years, with an annual average growth rate of 4 – 6% per year.7 By the end of this period, the FAA estimates that airlines around the world will be transporting two and a half billion passengers per year.8 In order to handle this increased activity, airlines will have to double the existing fleet of aircraft, purchasing between 15,000 and 17,000 new planes by the year 2016.9 Of these, between 5,000 and 7,000 will be needed to replace aging aircraft; the remainder — 10,000 planes — will be required to handle the increase in air traffic.10 Moreover, if the current accident rate continues, with the number of flights expected to take place around the world in the next century, tragic accidents may increase in frequency.11 We have to bring the aircraft accident rate down and zero is the only acceptable goal.12

Regulation of the Aviation Industry

The primary regulator of the aviation industry in the United States is the FAA. The FAA’s predecessor, the Federal Aviation Agency, was created by the Federal Aviation Act of 1958.13 When the Department of Transportation ( the “DOT”) was created in 1967, the Federal Aviation Agency was put under the DOT and renamed the Federal Aviation Administration. The FAA provides traffic control for aircraft flying over United States airspace. In addition, and among other things, the FAA: (i) oversees the safety of planes and airports; (ii) reviews the credentials and competency of pilots and mechanics; (iii) oversees aviation security; (iv) conducts research programs relating to safety and security; (v) provides mandatory safety rules; and (vi) conducts safety inspections.14

The NTSB began operation on April 1, 1967. Until 1975, the NTSB received funding from the Department of Transportation. The Independent Safety Board Act of 1975 severed all ties between the NTSB and the DOT. The NTSB is now an independent Federal agency charged with both investigating every civil aviation accident in the United States and major accidents in the other modes of transportation, and issuing safety recommendations aimed at preventing future accidents.15 Since 1967, the NTSB has investigated more than 100,000 aviation accidents, and has issued more than 10,000 recommendations concerning transportation safety. Although the NTSB has no regulatory authority, its influence is such that over 80 percent of these recommendations have been adopted in some form.16

How Safe is Flying ?

Statistically speaking, flying in an aircraft is extremely safe. The NTSB has reported that the fatal accident rate for United States airlines during 1996 was 0.026 per 100,000 aircraft hours.17 At that rate, a passenger would have to fly 24 hours a day for over 438 years before being involved in a fatal crash.18 Put another way, in 1995, 175 people died in airline accidents. Nearly five times as many people lost their lives in boating, bicycle and tricycle accidents.19 Nearly ten times as many people died in swimming accidents, and 250 times more people perished in motor vehicle accidents.20

Though, statistically speaking, aircraft flight is quite safe, aircraft safety is an issue of great concern to the American people. The explosion and crash of TWA Flight 800 provoked nationwide grief and horror on a scale unrivaled in recent history.21 Perhaps the most unsettling aspect of such incidents is that it is often demonstrated that they could have been avoided. As will be discussed below, the industry is currently plagued by a number of safety problems. Most of the major accidents in our recent history can be traced to one of these problems. The tremendous increase in air travel expected over the next 20 years will put a greater strain on the various elements of the our aircraft safety system. It is therefore imperative that we address these failings immediately.

Potential Liability Issues

The failings in our current system present significant potential liability exposure for aircraft owners, aircraft operators, and the federal government. If aircraft owners and/or aircraft operators fail to comply with existing safety guidelines, fail to implement recommended safety measures, or otherwise fail to exercise due care, they may expose themselves to lawsuits from passengers and their families. The government also is not immune from legal repercussions; if government employees fail to exercise due care in fulfilling their official non-discretionary duties, the United States may face liability under the U.S. Torts Claims Act, in which the Federal government waives its immunity to tort liability in the conduct of many of its functions. Given the hundreds of lives that can be lost in a single aircraft accident, the potential liability exposure is enormous.

CONTROLLED-FLIGHT-INTO-TERRAIN

Problems

CFIT is a significant accident categorization, cited as the cause of most aircraft accidents.22 CFIT results when an airplane suddenly deviates from its normal flight pattern and flies into terrain. A CFIT accident is one in which “an otherwise-serviceable aircraft, under control of the crew, is flown (unintentionally) into terrain, obstacles or water, with no prior awareness on the part of the crew of the impending collision.”23 The Boeing 757 Cali accident (“CALI”) was an example of CFIT 24 and, most recently, the NTSB has been investigating the Boeing 747-300 Guam accident as a possible CFIT-caused accident 25. CFIT is responsible for claiming the lives of 2,200 people between 1988 and 1995 in 37 accidents.26 Further, 60% of the commercial airline crashes worldwide caused by CFIT were comprised of aircraft flying non-precision approaches.27

Controlled-Flight-Into-Terrain is one of the greatest causes of fatalities in aviation.28 CFIT is not the result of aircraft mechanical failure, and rarely is it the result of the failure of any governmental or regulatory agency. Rather, CFIT is the result of human error — allowing a well-operating aircraft to fly into terrain. Until recently, the Ground Proximity Warning System (“GPWS”),29 which was made compulsory on board jet-powered passenger airliners by the FAA in the early 1980s,30 and the Traffic Collision Alert and Avoidance System (“TCAS”)31, were two of the most popular avionics devices available to help combat CFIT. Because CFIT remained the most common cause of aircraft accidents, and because both GPWS and TCAS were producing false and nuisance alarms, the Enhanced Ground Proximity Warning System (“EGPWS”)32 and CFIT Checklist33 were developed.

Solutions

Neither GPWS nor TCAS has been as effective as originally desired:

“Both GPWS and TCAS have produced variable numbers of false and nuisance alarms . . .  If a substantial fraction of the warnings received are evaluated by pilots in hindsight as false or unnecessary, they will not trust these systems, even if some of these warnings are correct and could save the aircraft.”34

EGPWS,35 by comparison, provides a full 60 second advanced warning of hazardous terrain whereas a conventional GPWS may give pilots as little as 10 seconds to take action. Additionally, unlike the conventional GPWS, EGPWS gives an illuminated panel display which is color-coded for surrounding terrain.36 As further evidence of the effectiveness of EGPWS, AlliedSignal Aerospace won the Flight International Aerospace Industry Award in the Air Transport Category in 1997 for its development of EGPWS.37

As a result of the CALI accident, the NTSB urged the FAA to “examine the effectiveness of the enhanced ground proximity warning equipment and, if found effective, to require all transport-category aircraft to be equipped with enhanced ground proximity warning equipment that provides pilots with an early warning of terrain.”38

Subsequently, the FAA Human Factors Team has stated that:

“Continued vulnerabilities to controlled-flight-into-terrain accidents demonstrate the need for further improvement in this area . . . New approaches are needed to supplement or replace the current ground proximity warning systems, such that earlier indications and warnings of potential collisions with terrain are provided and nuisance warnings are eliminated. A potential approach currently being proposed uses terrain databases in conjunction with accurate position information (e.g., from the global navigation satellite system), prediction algorithms for the airplane’s future flight path, graphical terrain depiction on an electronic display, and suitable flight crew alerting . . .”39

The EGPWS works by comparing a digital database of the world’s terrain with the aircraft’s location and altitude, to generate a map-like and color coded display of surrounding terrain.40 It provides a 60-second warning, which is much longer than the warning time provided by GPWS.41 American Airlines and United Airlines have ordered approximately 700 and over 400 EGPWS devices respectively.42

In addition to AlliedSignal’s development of EGPWS to combat CFIT accidents, the Flight Safety Foundation created a CFIT Committee in 1993.43 The Flight Safety Foundation has led a worldwide industry task force, including more than 120 organizations, to reduce CFIT.44 As previously mentioned, the Flight Safety Foundation developed a CFIT Checklist45, a risk-assessment checklist for pilots and operators.

Given that CFIT is one of the greatest causes of fatalities in commercial aviation and is largely the result of human error, if all pilots and operators are equipped with EGPWS, use the CFIT Checklist and are trained in CFIT prevention, CFIT can be dramatically reduced, if not eliminated.

PILOT TRAINING

Problems

The White House Commission on Aviation Safety and Security has recommended that government and industry aviation safety research should emphasize human factors and training.46 In fact, approximately 70% of the aircraft accidents which occurred during the past forty years have been attributed to pilot error.47 While the higher quality of pilot training48 has decreased the number of accidents during this period even as air traffic has increased,49 pilot training is still a serious concern.50 Jim Burnett, former Chairman of the NTSB, has stated that the way to further cut accident rates by up to 80% is through increased pilot training.51 Human factors continue to be the leading cause of aircraft accidents, according to National Transportation Safety Board Chairman Jim Hall.52 A Boeing analysis found that flight crew errors accounted for approximately 72% of all worldwide commercial jet accidents over the last 10 years.53 This statistic evidences the need for better flight crew training.54 The needed training in this area should be focused on improving the collective performance of the flight deck crew rather than the individual flying skills and performance of its members.55

Solutions

A key objective in the aviation industry today is achieving a zero accident rate.56 One way of achieving this goal is the development of a higher quality of captain and first officer training.57 Crew Resource Management, programs in which pilots are trained to improve communication techniques among themselves and to coordinate tasks in particular situations,58 and CFIT training are two vehicles which help to educate crews in the area of technical and non-technical training, both of which are essential to the growth, development, and safety of a flight operation.59 This training should be expanded throughout the industry.60 In addition, all pilots should be trained with the “Captain’s Mindset,” a philosophy that conveys the message to all first officers that they must think, act, and respond like a captain.61 In flight operations throughout the world the co-pilot or first officer is sometimes viewed as a second class citizen — a perception which must be changed.62 Several aircraft accident case studies have revealed that the co-pilot attempted to question the captain on a procedure or clearance once or twice; however, as a result of the co-pilot’s junior status, the co-pilot was not able to change the captain’s mind and often was not even able to focus the captain’s attention on the problem.63 Thus, training co-pilots to have a “Captain’s Mindset” is imperative to achieving a zero accident rate.64

When faced with a problem, a first officer trained with a “Captain’s Mindset” will offer a solution to the captain instead of looking to him or her for the answer.65 Such a first officer would take responsibility for his or her aircraft, crew, and passengers, and would be trained to establish excellent habits in order to be more of an asset in the cockpit as well as in the cabin.66 A first officer with a “Captain’s Mindset” should be trained and checked according to Airline Transport Pilot standards, establishing a single-standard level of safety in the industry.67 Such training will result in greater efficiency in pilot training, a higher level of commitment from all flight departments, and greater pilot accountability, thus significantly increasing aviation safety.68

It is difficult to put a price on the overall cost of an aircraft accident, or to estimate the true value of high quality pilot training. A single accident may shut down a company or, more tragically, result in significant loss of life.69 Many individuals and/or corporations may view pilot training as a financial liability until an accident occurs which highlights the need to emphasize pilot training.70 The entire aviation industry should be responsible to educate corporate America on the value of high quality pilot training — before, not after accidents occur.71

LANGUAGE BARRIERS

Problems

Lack of English language proficiency among air traffic controllers and pilots has plagued the aviation industry around the world for the past twenty years.72 In fact, investigators have cited the inability of air traffic controllers and pilots to speak and understand English (the industry’s recognized common language), as the cause of the following air disasters:

• In 1977, at Tenerife in the Canary Islands, heavy accents and improper terminology among a Dutch KLM crew, an American Pan Am crew and a Spanish air traffic controller led to the worst aviation disaster in history, in which 583 passengers perished.

• In 1980, another Spanish air traffic controller at Tenerife gave a holding pattern clearance to a Dan Air flight by saying “turn to the left” when he should have said “turns to the left” – resulting in the aircraft making a single left turn rather than making circles using left turns. The jet hit a mountain killing 146 people.

• In 1990, Colombian Avianca pilots in a holding pattern over Kennedy Airport told controllers that their 707 was low on fuel. The crew should have stated they had a “fuel emergency,” which would have given them immediate clearance to land. Instead, the crew declared a “minimum fuel” condition and the plane ran out of fuel, crashing and killing 72 people.

• In 1993, Chinese pilots flying a U.S.-made MD-80 were attempting to land in northwest China. The pilots were baffled by an audio alarm from the plane’s ground proximity warning system. A cockpit recorder picked up the pilot’s last words: “What does ‘pull up’ mean?”

• In 1995, an American Airlines jet crashed into a mountain in Colombia after the captain instructed the autopilot to steer towards the wrong beacon. A controller later stated that he suspected from the pilot’s communications that the jet was in trouble, but that the controller’s English was not sufficient for him to understand and articulate the problem.

• On November 13, 1996, a Saudi Arabian airliner and a Kazakhstan plane collided in mid-air near New Delhi, India. While an investigation is still pending, early indications are that the Kazak pilot may not have been sufficiently fluent in English and was consequently unable to understand an Indian controller giving instructions in English.73

Solutions

English is, unofficially, the international language of aviation.74 Every pilot who flies internationally must have command of at least five hundred English words.75 This standard is aimed at teaching pilots the bare minimum that is required for understanding basic aviation terminology.76 In addition, in the United States, FAA regulations mandate that a foreign carrier wishing to operate in U.S. airspace must certify that its pilots can speak and understand English well enough to communicate with controllers.77

It seems clear that the English standards currently in effect in the United States and worldwide are dangerously insufficient. In addition, the FAA has done very little to alleviate the problem. The FAA was supposed to urge the International Civil Aviation Organization (“ICAO”) to support a spoken English test for pilots and controllers.78 Instead, the FAA asked ICAO to cooperate with an industry group on a new glossary of international aviation terms.79 Some 180 nations have adopted these terms, but they are nevertheless free to deviate from them.80 In fact, the FAA’s mandatory wording differs from ICAO’s in dozens of instances.81

What is needed, both in the U.S. and worldwide, is a mandatory spoken English test for pilots and controllers. Such a test should not place an unreasonably high burden on the aviation industry in general. Many countries are voluntarily moving to an English-only aviation communication system. For instance, this year all controllers and pilots in China are required to speak English to one another in all sectors of international traffic.82 Furthermore, several higher learning institutions, such as Embry-Riddle and the Center for Aerospace Science at the University of North Dakota, have been teaching English to foreign controllers for many years. This program would be particularly useful for more widespread training should a mandatory spoken English test become a reality.83

THE AIR TRAFFIC CONTROL SYSTEM, AIR TRAFFIC CONTROLLERS AND THE YEAR 2000 ISSUE

Problems – Air Traffic Control System and Air Traffic Controllers

The Air Traffic Control System (“ATCS”) in effect today is largely the by-product of several catastrophic aviation accidents which occurred during the late 1950’s and early 1960’s.84 The two most significant accidents occurred in 1956 and 1960.85 In 1956, a midair collision over the Grand Canyon led to the use of primary or search radar to locate and track the aircraft monitored by controllers.86 In 1960, a midair collision over New York City led to the use of secondary, or beacon radar, thus giving air traffic controllers the individual identity and altitude of each aircraft under their supervision.87 Today, the overall management of air traffic in the United States relies heavily on the use of both primary and secondary radars, instantaneous voice communications between pilots and air traffic controllers and ground-based automation at various ATMS facilities.88

The FAA currently manages the nation’s civilian ATCS.89 Nearly forty-one percent of the FAA’s annual budget of $8.4 billion, and three-quarters of its 49,000 employees, are involved with ATCS.90 This system encompasses airport control towers, which guide and separate aircraft through landings, takeoffs, and taxiing; and twenty air traffic management centers, which manage the flow of air traffic between airports within the system.91 The system hardware, however, is chronically antiquated and in its current form will be unable to safely accommodate the country’s steadily rising volume of air traffic.92

Controllers are charged with a most important mandate — they protect the lives of millions of air-passengers each day. Ironically, they are forced to work with antiquated vacuum-tubed computers, typically dating back to the 1960’s and having only one percent of the power of a modern desktop PC.93 Of the twenty-one Air Route Traffic Control Centers in the contiguous United States, five operate IBM 9020E computers which are more than thirty years old, and fifteen operate Raytheon 750 computers that are approximately twenty-five years old.94 Stress rates among controllers continue to skyrocket, while mental breakdown on the jobsite has been documented.95 Overtime, long hours and extraordinary pressures have contributed to a three-fold increase in near mid-air collisions over New York City alone.96

Solutions – Air Traffic System and Air Traffic Controllers

ATCS Privatization

Privatization of ATCS has recently been proposed by several industry-related groups.97 The obvious benefit of privatization would be to transfer the costs borne currently by the government into private hands.98 Proponents of privatization also claim that it would make the skies safer. These groups reason that the FAA frequently requires major capital expenditures in order to keep its radar and communications equipment as state of the art.99 As a government agency, however, the FAA has not been able to get the capital it needs for ATCS quickly enough.100 Consequently, ATCS equipment remains chronically antiquated.101 An ATCS corporation, on the other hand, would be able to raise the required resources by tapping into capital markets, thus insuring that it has state of the art equipment.102

In addition to cost and modernization benefits, proponents say a move towards ATCS privatization would also relieve the overburdened FAA from all aspects of air traffic control, except for oversight and regulation of the private enterprise which assumes responsibility for the ATCS. Such a new structure would enable a leaner governmental FAA to devote substantially more of its resources exclusively to airline safety regulation.103 Privatization would allow the FAA to “work smarter” by using risk assessment to decide the targets and methods of inspection of carriers and to consider the manner and degree of ATCS monitoring.104

Certain commentators believe that the FAA must update its management techniques, improve its staff and modernize its culture in order to deal more effectively with its supervisory functions and the problems which will result from the enormous increase expected in air traffic in the coming years. They feel that the FAA has been reluctant to abandon its “old boy network” of former military and civil service personnel and must make a concerted effort to hire a better educated and younger group of professionals in order to fulfill its mandate.105 Relieving the FAA from the primary responsibility for air traffic control might have the effect enabling it to focus its attention on this and other matters necessary to deal with current and future oversight and regulatory needs. In addition, private enterprise may also be more amenable than the FAA to hiring air traffic controllers who are graduates of the FAA-sponsored College Training Initiative. Even though this program was sponsored by the FAA, it has not yet resulted in the hiring of significant numbers of these graduates.

The first step in privatizing ATCS would be to reorganize the FAA and create a new independent corporation.106 Next, substantially all ATCS-related FAA employees (roughly 40,000), all FAA facilities equipment used to operate ATCS, and all ATC responsibilities held by the FAA (other than oversight and regulation) would be transferred to this new corporation.107 During the reorganization period, and until the company becomes fully operational, all shares could be held by the United States. As part of the reorganization, it is also possible that new ATCS companies could be created to foster competition.108 At the end of any reorganization period, the shares would finally be sold to the public,109 or to one or more existing public or privately held corporations. A portion of the shares might also be reserved for purchase by firms and industries that would depend on the corporation’s services, such as major airlines or associations representing general aviation or passengers.110 Once the corporation is established, it would operate on a self-supporting basis and should have the same authority to borrow from capital markets for major expenditures, modernization, and various other improvements as any other company.111

Many countries have either already privatized their ATCS or have legislation pending which would result in privatization.112 For example, New Zealand has enjoyed success with the new structure. Modernizing its ATCS for less than one half the cost the government predicted, it persuaded private aircraft users to pay user charges, reduced its operating costs and returned handsome profits.113

Those who oppose privatization (including some members of The Association of the Bar of the City of New York’s Aeronautics Committee) make several persuasive arguments. Some worry that a private corporation would actually hamper any effort to improve safety, since such a corporation would be motivated predominately by a desire for profits.114 Others contend that public accountability and Congressional oversight would be lost.115 Labor groups are concerned about the potential labor-management problems which might result from a privatized system.116 Phil Boyer, President of the Aircraft Owners and Pilots Association, posits that privatization is not a solution to this non-problem. He believes that moving ATC out of the government into a private company creates no competitive advantage. The private company will be a monopoly subject to union and large corporate pressures, but without any countervailing public benefit. Other opponents also maintain that already privatized air traffic control agencies in other countries are so small by comparison to the FAA as to make comparison meaningless. Finally, additional questions would arise in connection with liability or responsibility for air traffic accidents.117

Liberating the Federal Aviation Administration

Although privatization has not been acted upon in any meaningful way in Washington, a recently passed bill by the House of Representatives, while not privatizing ATCS, would combat the funds procurement problem. The bill would largely free the FAA from the Department of Transportation (“DOT”) and its myriad of procurement procedures, regulations, reviews and “bottomless pit of second guessers,” giving air traffic controllers faster access to the best technology and improving the efficiency and profitability of U.S. airlines.118 Under the House Bill, the Secretaries of Transportation and Defense would sit on the reformed FAA’s board as nonvoting members. A Senate Bill, on the other hand, would also combat the funds procurement problem but would leave the FAA within the DOT. Former Transportation Secretary Frederico Peña supported such a bill, and threatened to ask President Clinton to veto any bill that strips the FAA away from the DOT.119 This type of bill might also enable the FAA to hire more of the better educated, recently graduated students of its College Training Initiative as air traffic controllers.

“Free-Flight”

Another proposal currently receiving a lot of attention, known as “Free Flight”, is endorsed by most industry groups including the FAA.120 Free Flight, a joint initiative between the FAA and the global aviation industry,121 is a satellite and computer based navigation system.122 Using this system, pilots, rather than air traffic controllers, would be able to select their own routes utilizing a Global Positioning System, a satellite network that pinpoints an aircraft’s position with great accuracy.123 The system is so advanced that pilots could even pick the routes having the most favorable wind conditions and least traffic.124

Free Flight is based on the principle of maintaining safe aircraft separation.125 The system defines two zones: a protected zone and an alert zone.126 The size of each zone depends on the aircraft’s speed and performance characteristics as well as its communication, navigation, and surveillance equipment.127 The protected zone is the one closest to the aircraft. The protected zone of one aircraft can never meet the protected zone of another.128 The alert zone is much larger than the protected zone. Aircraft can move freely until two alert zones come into contact.129 If two alert zones come into contact, a controller would send course corrections or restrictions to ensure separation.130

The potential benefits of Free Flight are enormous. The system would promote safety by allowing aircraft to travel with virtually no assistance from overburdened air traffic controllers and by providing more accurate information from satellites.131 It is estimated that Free Flight will save domestic airlines as much as $5 billion per year by the year 2010.132 Free Flight could also shorten the duration of some flights by as much as 20%. In fact, the FAA views Free Flight as a necessary concept if the FAA is to handle the anticipated increase in air travel over the next twenty years.133 In order to implement Free Flight, the FAA is currently evaluating and acquiring new technologies, such as a standard terminal automation and replacement system, global positioning system, wide area augmentation system, traffic alert and collision avoidance system as well as digital communications and dependent cooperative surveillance. Additionally, it is evaluating decision support systems including final approach spacing, enhanced traffic flow management, conflict probe/resolution, and surface management advisor.

Recently, the FAA developed Flight 2000 Path to Free Flight (“FLIGHT 2000”).134 FLIGHT 2000 is a microcosm of and precursor to Free Flight.135 FLIGHT 2000 will transfer the Free Flight concept to a real operational setting and conduct a complete operational system evaluation prior to NAS-wide development.136 At the center of FLIGHT 2000 is the integration of information via digital communications, navigation satellites, automatic dependent surveillance broadcasts, weather processors, cockpit displays, and air traffic control and flight planning tools for the safe planning and efficient execution of all phases of flight.137 Flight 2000’s operational capabilities are scheduled to begin in the year 2001 in Alaska, Hawaii, and the Pacific Ocean airspace.138

Although the potential benefits of Free Flight may be desirable, such a free-flowing air traffic control system may compromise safety. Particularly in congested air traffic areas such as the New York metropolitan area, increased air traffic control and separation — not decreased control and separation as proposed through implementation of Free Flight — may be necessary to ensure the safety of aircraft flight. Additionally, Free Flight cannot be implemented immediately. Full implementation would require new ground and air-based communications, navigation, and surveillance equipment, as well as new avionics and decision support systems.139 Since the system hinges upon the introduction of sophisticated, high-tech satellite and computer tracking technology, it is estimated that it will take at least ten years to develop and implement and that it will cost billions of dollars.140

Problems – The Year 2000 Issue

At 12:01 a.m. on January 1, 2000 many computer systems worldwide will malfunction or produce incorrect information because of a simple date change anomaly.141 The Year 2000 (“Y2K”) Problem as it is called, results from the way computer systems store and manipulate dates.142 Dates are often used as part of a computer-based system’s algorithm or decision process.143 For efficiency and to economize storage space, most computer manufacturers and computer program designers omitted the first two digits for the year (i.e.. the century) when they referred to dates in computer programs.144 Therefore, when the date rolls over from 1999 (99) to 2000 (00), many computer programs will fail to recognize the change in the century and misread “00” (the year 2000) as 1900 instead.145

As the year 2000 approaches, the date rollover problems associated with various computer systems become more apparent.146 These problems include: 1) the malfunctioning of sort routines; 2) the reversal of logic decisions; 3) the inability to forecast shelf-life items; 4) the inability of inventory systems to generate correct stock level reports for reordering; 5) the malfunctioning of commercial products; 6) the invasion of security access rules; and 7) the inability to properly validate intelligence data.147

The types of systems that will be affected include mainframes, client/servers, networks, workstations, telecommunications systems, radar processors, and communication processors.148 Software that is potentially affected includes both application software and system software.149 Databases and fields which store two position year fields will also be affected.150

Although the Y2K problem is not a difficult technical problem to solve, it requires a major coordination effort throughout the FAA due to the large number of computer systems, languages, and platforms used by the FAA.151 Many of the FAA’s systems are classified as Mission Critical, such as the majority of those that comprise the National Aerospace System (“NAS”).152 Several of those Mission Critical systems are affected by the Y2K issue, and require renovation to become year 2000 compliant.153 Fortunately those repairs are well underway and many systems have already been renovated and certified compliant.154

Solutions – The Year 2000 Issue

Safety is the single most important concern at the FAA. The overall goal of the FAA Y2K Program Office (“Y2KPO”) is to insure that the NAS operates safely through the Y2K and beyond.155 The FAA has taken several steps toward achieving this goal: 1) the establishment of a schedule that requires all FAA systems (including the NAS) to be Y2K compliant by June 30, 1999; 2) the development of Y2K contingency plans for each FAA system to augment existing operational contingency plans for the NAS detailing alternate courses of action in the event of system outages due to Y2K; and 3) the development of an agency level Y2K contingency plan.156

In order to coordinate all Y2K compliance efforts throughout the FAA, the Y2K PO 157 developed four major goals: 1) to insure that the NAS and other core FAA systems will operate reliably through the Y2K and beyond; 2) to insure that all lines of business across the FAA follow a consistent approach and adhere to the project schedule; 3) to monitor the status of all FAA Y2K efforts through the entire repair life cycle; and 4) to minimize risks associated with the FAA Y2K repair efforts.158

To help achieve these goals, one of the Y2K PO’s first steps was to establish Y2K Line of Business (“LOB”) Program Offices (“LOB Y2K PO”) for each of the FAA’s seven lines of business.159 Each LOB Y2K PO is responsible for the Y2K repair activities associated with all systems in their LOB’s.160 The FAA Y2K PO is responsible for ensuring that LOB Y2K compliance efforts are carried out effectively.161 More specifically, the FAA Y2K PO does the following: 1) establishes and maintains a structure, process, and schedule for the Y2K repair efforts across the FAA; 2) monitors and reports status for FAA Y2K activities; 3) helps coordinate conversion of cross boundary information systems; 4) establishes a method for ranking systems by critical and conversion priority; 5) minimizes and manages risk associated with the Y2K; 6) manages resource allocation; 7) maintains clear lines of communication with all involved parties; and 8) facilitates the exchange of information between LOB Y2K PO’s, preventing duplication of efforts.162 Each LOB Y2K PO does the following: 1) oversees Y2K repair efforts throughout the LOB; 2) maintains a management structure conducive to this role; 3) insures that systems and owners are adhering to the FAA Y2K repair process and standards; 4) provides the LOB specific technical support to systems owners and renovators in the field; 5) mobilizes resources within the LOB; 6) coordinates with appropriate managers in the FAA Y2K PO regarding agency-wide standards; 7) works closely with FAA Y2K PO to bring any necessary expertise to the LOB; and 8) reports progress of Y2K repairs to the FAA Y2K PO.163

The Y2K issue continues to be a concern. Given that the Y2K is less than two years away, in order to maintain safe air travel we must insure that the necessary renovations are made to key FAA operations systems, including radar and communications systems which control air traffic, to make such systems Y2K compliant. Otherwise, at 12:01 a.m. on January 1, 2000, the safe control of air traffic may be compromised.

AIRCRAFT PARTS: “BOGUS” OR “UNAPPROVED”

Problems

Background

Another major aviation safety problem is “bogus” or “unapproved” parts.164 Everyone, including the FAA, acknowledges that parts which have not been formally approved by the FAA find their way into airplanes flying throughout the United States.165 Parts are classified into two distinct categories by the FAA.166 The category “unapproved” parts refers to those parts which are airworthy but simply lack the proper FAA paperwork.167 The other category, referred to as “bogus” parts, includes counterfeit parts, parts which are inadequately refurbished, and parts which are simply not functional.168 It is this latter group of parts which all experts agree poses the greatest danger to the flying public.169

The FAA, however, appears to be reluctant to acknowledge bogus parts as a cause of accidents.170 Mary Schiavo, the outspoken former Inspector General of the Transportation Department, has asserted that the FAA pressured her and the NTSB to replace the use of the term “bogus” parts with that of the less ominous sounding “unapproved” parts terminology.171 She has also claimed that the FAA has reclassified accidents, actually caused by bogus parts, as due to “unapproved” parts.172 This allegation was supported by an article in Business Week magazine, which alleged a cover-up within the FAA designed to hide the true scope of the problem.173 The article noted that an internal FAA report it had obtained listed bogus parts as the cause of 166 accidents between 1973 and 1993, a stark contrast to the FAA’s public claim that bogus parts had never caused a single accident.174

In testimony before the Senate, then-FAA Administrator David Hinson said that unapproved parts were “a safety concern” but that they did not pose a significant safety problem.175 Hinson noted that “there has never been a U.S. air carrier accident in which an unapproved part has been determined to be the cause.”176

The Scope of the Parts Industry

To understand the inherent complexity of the parts problem, it is important to recognize that a single commercial aircraft typically contains millions of individual parts.177 Any attempt to further regulate the parts industry must be planned with the understanding that there are literally billions upon billions of parts worldwide. In a market so vast, it should come as no surprise that bogus parts can make their way into virtually any hangar. Business Week, for example, asserts that “every major domestic air carrier” has unknowingly purchased bogus parts at one time or another.178 The sheer size of the airline parts industry has thus become a major impediment to change.179 With billions of parts in the market, it is impossible for either the individual airlines or the FAA to verify the true lineage of any individual part.180 A refurbished and reconditioned part, properly approved and ready to fly, is often indistinguishable on the outside from another which had only the equivalent of a fresh coat of paint.181

Yet another difficulty is the large number of parts distributors and the international scope of the parts market.182 One estimate places the number of parts dealers between 2,000 and 5,000.183 A recent incident exemplifies how the international dimension of the market makes preventive measures difficult. The cause of the fire in a Valujet plane in June of 1995 at Hartsfield International Airport in Atlanta was an engine which had been improperly overhauled in Turkey.184 The repair station in Turkey, lacking the requisite FAA approval, merely plated over a cracked and corroded compressor disk and sold the part to Valujet.185 These “repairs” made the flaw undetectable to the eye and obviously did nothing to alleviate a problem which eventually resulted in the evacuation of 57 passengers from the plane.186

Current Parts Regulation

A brief explanation of the workings of the vast airline parts market will help illustrate both the lack of regulation and some of the difficulties that explain it. First, all manufacturers of airplane parts must be approved by the FAA and parts made by them must be accompanied by paperwork demonstrating that they were made by an FAA-approved facility.187 However, the parts are then sold to dealers who are unregulated.188 It is at this stage that bogus parts usually penetrate the market189 — the unregulated dealers sell such bogus parts to regulated airlines whose mechanics install them.190

Used and refurbished parts are even more problematic. They are supposed to be checked for strength and precision after being repaired in strict accordance with FAA regulations.191 While there is FAA documentation (a “yellow tag”) that should accompany these parts to the aircraft before installation, there is no official seal, nor is there any impediment to simply typing up fraudulent documents on a word processing program, as Business Week noted in its expose on the bogus parts trade.192 Parts dealers have the authority to simply type the appropriate information on the yellow tag without further inspection by the FAA.

Solutions

One possible solution to the parts problem would be for the airlines to self-police the system. Given the dramatic effect that even a single accident has on the business of a commercial airline, particularly a major national carrier, it would appear that the self-interest of the airlines should be sufficient to motivate them towards some form of self-policing. However, more often than not, the airline which finally purchases the bogus part is not even aware that it has done so; the fraud has been perpetrated several steps earlier than the airline’s purchase at the dealer level.193

Another proposal, one that would appear to make even more sense and one that is endorsed by the FAA, is to require accreditation for dealers in parts.194 Under this proposal, dealers would have to be accredited by the FAA, and the airlines which would purchase parts from such registered dealers would receive certain benefits. For example, the airlines would receive the benefit of increased assurance that such parts were not bogus or unapproved if such parts were purchased from an FAA accredited dealer, accountable to the FAA.195 Airlines would also be prohibited from purchasing parts from unaccredited dealers, and dealers would lose their accreditation if they were found to have purchased parts from non-approved sources. This approach would provide a system under which the airlines would buy parts only from FAA-accredited dealers.

The airline self-regulation proposal in respect of dealers is an appropriate interim measure: it is relatively low cost and would prompt airlines to seek out safe equipment sources. However, in light of the serious safety concerns, the aircraft parts industry requires even tighter controls.

Another possible solution would be to levy heavy fines for airlines found to be using bogus parts or purchasing them from unaccredited dealers.

The toughest proposal, endorsed by the Office of Investigation (the “OIG”) of the DOT, would have the FAA directly regulate parts dealers.196 This approach would require a significant number of FAA inspections initially (to certify each of the dealers once the certification legislation was passed) and on an ongoing basis (to insure that the dealers were following the FAA’s requirements and guidelines). However, former FAA Administrator David Hinson did not endorse the OIG’s proposal, claiming that it would be prohibitively expensive, among other drawbacks.197 Alternatively, perhaps the purchase and/or sale of bogus or unapproved parts should be made a crime, thus creating a criminal deterrent to dealers who purchase or sell such parts.

Most recently however, the FAA issued an advisory circular to provide information and guidance to the aviation community for detecting suspected unapproved parts and reporting them to the FAA.198 Such industry action is an important step towards reducing and eventually eliminating the use of unapproved parts, and thus increasing the safe operation of aircraft.

FLIGHT DATA RECORDERS: A CASE STUDY – LOSS OF CONTROL OF 737s

Problems

It is a tribute to the efforts of the NTSB and to the FAA that virtually every commercial aircraft accident is traced to a single cause. It is this aggressive style of accident investigation which is most likely responsible for the impressive safety record of the U.S. aircraft industry. Nevertheless, several recent incidents involving loss of control in 737s, the single most popular commercial aircraft in the sky, have brought into question the ability and the focus of both the NTSB and the FAA to coordinate their efforts in solving a widespread problem.199

Solutions

A major problem that the FAA and the NTSB have recently addressed is the antiquated flight data recorders on many aircraft currently in use, including 737s.200 In addition to interviews of the flight crew, flight data recorders enable the FAA to explain problems that develop during flight.201 However, the flight recorders on many of the 737s now in operation provide only inefficient readings on such parameters as time, pressure, altitude, air speed, acceleration, pitch, and thrust power.202 Information obtained from flight data recorders, which record information such as the operational status of aircraft electrical and hydraulic systems, might increase the ability of the NTSB to determine the precise cause of an aircraft accident, thereby putting aircraft operators on notice of potential safety concerns. The lack of information from flight recorders has been identified as a reason why the cause of many of the recent loss of control episodes has not been found.203

The corrective actions taken by the NTSB and the FAA call into question the ability of these agencies to collectively handle safety issues in a timely manner.204 In February 1995, the NTSB recommended that the FAA order all US airlines to install state-of-the-art flight data recorders on all 737s by the end of 1995.205 Although this goal was probably attainable, the warning was not heeded.206 In June 1996, after an Eastwind 737 was grounded for a loss of control problem, NTSB chairman Jim Hall sent a letter to the FAA which compared this loss of control with other accidents and accused Hinson of failing to heed the February 1995 recommendations.207 On July 9, 1996, rather than going along with the NTSB’s proposal for an immediate retrofit of the 737s, the FAA finally issued a proposal that would give airlines four years to retrofit their fleets, 737s included.208 According to the NTSB, such a time frame is too long.209

This series of events raised many troubling questions. Most importantly, why can’t the NTSB and the FAA work together to remedy important safety issues, such as losses of control, as quickly and efficiently as possible? It is difficult to understand why interagency differences should delay information of important safety measures, while 737s take mysterious nose dives and their flight recorders offer no insight into the cause.210

Most recently, however, the Federal Aviation Administration issued a final rule requiring that certain airplanes be equipped to accommodate additional digital flight data recorder parameters.211 This final rule follows both a series of safety recommendations issued by the NTSB, and the FAA’s decision to revise the digital flight data recorder rules to upgrade recorder capabilities in most transport airplanes. These revisions will require the collection of additional information to enable more thorough accident or incident investigation and to enable the aviation industry to predict certain trends and to make necessary modifications.212 This action by the FAA indicates that the FAA is now taking the NTSB’s recommendations more seriously.

HAZARDOUS MATERIALS

Introduction

In the past, there have been few major aircraft accidents caused by hazardous materials shipments.213 Overall, hazardous cargo makes up only a small portion of the freight carried on U.S. transports.214 Cargo specialists have noted that commercial airlines are doing a decent job of handling hazardous material shipments; however, dangerous items shipped without declaration continue to pose serious problems.215

In May 1996, a Valujet DC-9 crashed in the Florida Everglades, killing 110 people. On August 19, 1997, the NTSB determined that the accident resulted from a fire in the Class D cargo compartment due to the actuation of one or more oxygen generators improperly carried as cargo. This improper carriage resulted from SabreTech’s failure to properly prepare, package, identify and track unexpended chemical oxygen generators before presenting them to Valujet for carriage; Valujet’s failure to properly oversee its contract maintenance program to ensure compliance with maintenance, maintenance training, and hazardous materials requirements and practices; and the FAA’s failure to require smoke detection and fire suppression systems in Class D cargo compartments.216 It was also determined that the FAA failed to monitor adequately Valujet’s heavy maintenance program and responsibilities, including Valujet’s oversight of its contractors and SabreTech’s repair station certificate, and that the FAA failed to respond adequately to prior chemical oxygen generator fires with programs to address the potential hazards.217 The fire was started by chemical oxygen generators which were stored in a compartment of the plane without smoke detectors or fire extinguishing systems. The generators supplied the oxygen needed for the fire. The NTSB is currently reviewing two other incidents involving fires caused by chemical oxygen generators carried on board commercial air transports.218

The DOT initiates, sets, and administers the rules for transportation of hazardous materials by U.S. airlines.219 The Department’s Research and Special Programs Administration (“RSPA”) oversees the FAA’s hazardous materials program, which includes regulations regarding passenger and all-cargo aircraft, and requirements for packaging, labeling, and personnel training. In addition, the FAA has input on aviation-related hazardous materials issues and can suggest or comment on the DOT’s proposed rule changes.

Problems

There are a number of aviation safety issues raised by the transport of hazardous materials, most importantly the shipment of dangerous items without declaration. As of 1996, there were more than 500 reports annually of undeclared dangerous materials.220 Whether unintentional or intentional, these shipments are generally only discovered if they have been packaged improperly. The crash of the Valujet aircraft is an example of an unintentional violation, in that the oxygen canisters on board the aircraft were mislabeled as empty. Intentional violations are often motivated by economic motives.221 Hazardous materials surcharges are imposed by freight handlers and airlines because the required training of employees in dangerous goods handling can be costly.222

To prevent the illegal transport of hazardous materials, there is a need for more inspectors to enhance the FAA’s ability to detect violations. Even prior to the Valujet incident, the NTSB pointed out the need for more U.S. Transportation inspectors to spot check economically pressed small shippers, who are most likely to ignore rules for hazardous goods.223 The amount of U.S. air cargo is expected to triple within the next 20 years, so a long-term approach for additional inspection services should be implemented now.224

There is also a need for improved education and training for shippers and airline workers who handle hazardous materials. The mechanics who prepared the oxygen-generating canisters for shipping on the Valujet DC-9 did not have the correct caps to seal the canisters’ activating mechanisms.225 Instead, they improvised a rigging that they believed would disable the canisters; however, post-crash tests have convinced investigators that the makeshift rigging did not work.226

Finally, there is a need to keep incendiary chemicals and substances out of airplane compartments without fire suppression capabilities227 or at least to insure that such compartments are equipped with early smoke and fire detection devices.228 Until recently, Class D cargo compartments, which seal in order to cut off the flow of oxygen if a fire breaks out, were not required to be equipped with smoke detectors or fire extinguishing systems.229

Government Response

As a result of the Valujet fire and crash, the RSPA placed a temporary ban on the carriage of chemical oxygen generators until January 1997. In June 1996, the NTSB urged the FAA to: (1) immediately re-evaluate training and handling procedures in effect at all U.S. air carriers pertaining to the identification of unauthorized hazardous materials offered for transport; (2) revise training practices to ensure that airline personnel can identify unauthorized or hazardous materials; (3) prohibit carriage of chemical oxygen generators as cargo on board any passenger or cargo aircraft when their shelf life has expired and the chemical core has not been depleted; and (4) prohibit the transport of oxidizers and oxidizing materials in cargo compartments lacking fire or smoke detections systems.

In July 1996, following the NTSB’s recommendations, the FAA proposed the following: (1) the RSPA should permanently ban the transportation of oxidizers and oxidizing materials in specific compartments of passenger and cargo planes; (2) more hazardous materials should be added to the list of those already restricted for shipment on airlines; (3) the number of hazardous materials inspectors should be increased from 22 to 150; (4) there should be required labeling of Class C and D cargo compartments to enable easy identification by ground crews (Class C compartments contain smoke and fire detectors; Class D compartments do not); and (5) there should be improved education for shippers and airline workers who work with hazardous materials.

Comments/Conclusions

The FAA reacted quickly to the Valujet accident, but its initial response did not necessarily alleviate concerns. Some contended that the primary flaw in the FAA regulations was that they did not require improved fire suppression equipment. Since 1986, the FAA has required more stringent burn-through tests for Class D cargo compartment liners, but has only recently complied with NTSB pleas to require fire detection systems.230 The FAA had concluded that fire/smoke detection would not provide a significant degree of protection to occupants of aircraft and as such had terminated rule-making on that issue.231

Recently however, the FAA ordered fire detection and suppression systems for aircraft cargo compartments.232 This rule meets a recommendation of the White House Commission on Aviation Safety and Security, which urged the installation of both fire detection and suppression system cargo holds.233

The regulations will restrict hazardous materials carried on planes and require fire detection and suppression systems; thus the FAA’s approach is now geared toward prevention and suppression. However, restricting hazardous materials does not guarantee compliance and illegal materials may continue to find their way on board. Even under such regulations, the Valujet crash might not have been preventable. If the accident was partly due to mislabeling the oxygen canisters as empty, they would not have been banned for containing hazardous chemicals. However, inspection of the improvised rigging caps could have revealed the mislabeling and avoided the tragedy. Thus, the FAA’s recent action in requiring fire detection and suppression indicates that the FAA believes that such additional action is necessary to ensure that, in the event materials are carried on an aircraft illegally, airlines will be prepared to deal with the possible consequences.

THE VALUJET MICROCOSM

The Valujet disaster, while bringing to light the dangers of hazardous substance transportation, can also be viewed as a microcosm for two other important issues currently concerning the FAA which also affect aviation safety: political volatility and the dual role conflict.

The FAA’s Political Volatility

Former FAA Administrator David Hinson’s initial report to Transportation Committee Chairman Bud Shuster (R-Pa.) on June 11, 1996 indicated that Valujet was safe enough to fly.234 However, one week later, immediately after a White House meeting on the subject, the FAA promptly reversed its position and grounded the airline.235 Reports circulated that the decision to ground the airline resulted from political pressure by the White House.236 Hinson denied this charge, asserting that politics played no part in the decision: “In my three-year tenure as FAA Administrator, the White House has never in any way asked or tried to direct, has never tempered or affected any of my decisions regarding safety issues.”237

In the Valujet scenario, any political pressure would have had the effect of making the skies safer. However, a branch of the government or its members might seek to compel the FAA to give the green light to an airline which the FAA is determined to ground. Would the agency improperly defer to the White House? Safeguards must be in place to prevent political pressure from being asserted on an independent government agency, such as the FAA. Perhaps the House of Representatives should regularly review the timing of certain FAA decisions, as it did in the wake of the Valujet disaster, to determine if political pressure played a part in safety-related FAA decisions.

The Dual Role Conflict

The events leading up to the grounding of Valujet in the middle of June 1996 seem to demonstrate a conflict which may have plagued the FAA since its inception. Valujet began service in October 1993, and since that time the FAA has mounted 21 separate investigations of the airline.238 Investigators discovered that Valujet planes were flying with their mandatory equipment broken.239 The agency cited Valujet pilots for making routinely bad cockpit decisions.240 Ironically, by March of 1996, even the airline’s internal reports revealed a litany of problems.241 Among these were eight engine shutdowns during flights, thirteen forced returns to airports and twenty eight problems with landing gear, to name just a few.242

Despite the FAA’s admitted awareness of these problems, the airline was allowed to continue flying.243 Naturally, some wonder why the FAA, an agency which is supposed to protect passengers from dangerous airlines, would have allowed Valujet to keep flying.244 The answer may have lain in the FAA’s previous charter: the agency’s mandate was to regulate as well as promote the airline industry.245 Here lay the potential conflict which may have plagued the FAA since its inception in 1958.246 The same agency that was charged with policing the industry was also to act as its principal public advocate.247 Until the middle of May 1996, for instance, the FAA was using Valujet as its deregulation poster child, touting it as an inspiration to the industry with its rapid growth and cheaper fares.248 After all, Valujet’s cut-rate pricing was functioning just the way deregulation had promised — the aviation business was being “freed up” and the bigger airlines would be forced to follow suit by reducing their fares and making air travel accessible to everyone.249

The dual role conflict had also manifested itself outside the problem of discount airlines like Valujet. For example, many critics have maintained that the FAA’s downplaying of the bogus parts problem was a result of the FAA’s close relationship with the airlines.250 Similarly, other critics have stated that the FAA failed to ground 737s even in light of the problems with them because of the FAA’s deference to Boeing, a long time industry powerhouse and manufacturer of the 737.251 Former Department of Transportation Secretary Frederico Peña recently had urged Congress to change the FAA’s charter in order to make safety its primary aim.252 Mr. Peña claimed that the dual mandate “has caused some to believe that the FAA had to make choices between safety and promoting the industry.”253

Most recently, however, the FAA’s charter has been revised to make safety the FAA’s primary goal.254 Thus, it is clear that the industry is focused on putting safety in the forefront. Nonetheless, the dual role conflict may continue to be a problem that needs to be addressed in order to improve air safety because the possible conflict permeates every major safety-related decision which the FAA makes — whether it be related to bogus parts, 737s or discount airlines. The easiest and most obvious way to combat the conflict is to eradicate it. Airline Pilot Association President J. Randolph Babbitt commented that the change is “long overdue and is a major step in the right direction.”255 Not surprisingly, the only industry-related groups who did not call for elimination of the dual role mandate were those representing the airlines, like the Air Transport Association, which claimed that the FAA’s then-current mandate was clear: “From the industry’s point of view, the agency has focused first and foremost on safety and has never let its secondary mission of promoting aviation get in the way of its primary objective.”256

Above all else, the federal government should ensure that the public gets the safety it should be getting. The public, in general, believes that the FAA is strictly a safety regulator and the way in which the FAA has handled crises like Valujet only serves to undermine public confidence in the agency.257 The best way to promote air travel to the public is through a guarantee of air safety.258 Thus, a change in the FAA’s charter is a positive first step to focusing the agency’s mission on safety. However, whether this will have a practical effect remains to be seen.

In 1974, the long-since abolished Atomic Energy Commission, which both promoted and developed nuclear reactors and regulated their safety, was split into the Nuclear Regulatory Commission (“NRC”) and the Department of Energy (“DOE”).259 Today, the NRC regulates the use of radioactive material and the DOE consolidates government energy programs.260 It may be time for the same to be done in the aviation industry.

TERRORISM

Introduction

Terrorism poses a threat to many aspects of life today and air travel is no exception. Commercial aviation has historically been a favorite target of terrorists. In the early 1970s, more than 30% of all international terrorist attacks were targeted against some aspect of commercial aviation.261 Since 1969, one-third of the 70 known bombing attempts against airlines worldwide have achieved some degree of success,262 resulting in at least 15 crashes and killing 1,732 people.263

The face of terrorism as it relates to air travel has changed over the past two decades. The trend has moved away from airline hijackings and attacks on specific officials toward large-scale, indiscriminate violence and killings.264 Portable missiles represent an entirely new category of threats, in the face of which commercial aircraft are virtually defenseless.265 Intelligence experts have warned that anti-American terrorism is growing, with the threat of domestic terrorism against U.S. airlines becoming more real.266

Problems

There is a perception that the United States has failed to adopt a coherent and effective policy to combat the growing problem of terrorism as it relates to commercial aviation.267 In recent years, U.S. security measures have remained reminiscent of the past, in that the toughest measures were focused not on terrorist bombs on planes, but rather on potential hijackers and drug trafficking.268 As a result, it has been reported that the methods used to protect American planes from bombs lag behind both the state of the art and the systems already deployed in many European countries, and that the sophisticated technology available to terrorists far surpasses security systems employed at many U.S. airports.269 Senior U.S. counter-terrorism officials have noted that placing a bomb on a U.S. airliner is easier than smuggling either a gun or a knife on board.270

As a starting point, two areas are clearly in need of improvement. First, there is the need for expert technological devices to detect weapons and bombs that are not detected by mechanisms currently in use in most American airports (e.g., metal detectors and x-ray machines).271 In addition, airline security personnel represent a weak link in the chain of security.272 Many of the systems in operation today are manual and depend on an operator’s judgment, training and experience to ensure optimum results.273

The identification of potential areas of improvement is only one part of the solution. There has also been much debate regarding the cost of improving existing security systems. There is concern about the cost-efficiency of potential improvements, about who will actually pay for any improvements made, and about delays and inconveniences to passengers resulting from more elaborate security systems. Although over the past decade there have been many proposals to improve terrorism prevention tactics, their implementation has frequently been thwarted by the controversy over costs. Government officials believe that the airline industry, which has typically paid for its own security, has resisted many of the demands for improvement due to financial concerns.274 On the other hand, the airlines, engaged in fierce competition, argue that past proposals have been unrealistic, and that they cannot be implemented without crippling the travel system with costly and frustrating delays.275 Edward Merlis, senior vice president for government affairs of the Air Transport Association, has commented that there is a considerable difference between processing passengers and interdicting terrorists, and that the latter goes beyond the industry’s responsibilities.276

Another perceived problem relating to terrorism and airline safety has to do with the prior dual role of the Federal Aviation Agency and its continuing effect. The FAA until recently was responsible both for promoting safe air travel and enforcing security measures affecting aircraft and air terminals. Recently, however, the FAA’s role was changed, making aviation safety its top priority. Its security department is the regulatory arm of the government’s counter-terrorist program. Since inception, it has focused on identifying security threats involving aircraft piracy, prescribing security requirements for airlines, aircraft, and airports, and providing technical assistance regarding these measures.277 At the same time, its prior role as promoter of aviation may have mitigated the FAA’s security enhancement demands, the continuing effects of which remain to be seen.278

Even with all the recent emphasis placed on the threat of terrorism, there remain some who believe that, in the end, the risk does not justify the cost of preventative measures. One commentator noted that for those travelling by plane during the 6 billion air trips worldwide in the past eight years, the chances of dying in an incident involving an on-board bomb was less than 1 in 8 million.279 Another commentator examined the cost of additional time necessary for the expanded pre-boarding processing of passengers. Estimating the extra time spent at one-half hour, and using a rate of $10 per 1/2 hour per passenger, multiplied by 500 million passengers, the total cost would be $5 billion per year. Since 1982, an estimated 548 people have died in air crashes in the United States linked to sabotage, or 37 lives per year. This would result in a $135 million cost for each life saved per year, assuming new airport precautions actually cut sabotage deaths to zero.280 Finally, an economist at Harvard has estimated that saving one life would cost approximately $50 million, and that doing so at this price would be self defeating because it would drain resources from other life-saving purposes.281 This type of cost-benefit analysis is difficult, however, because the value of human lives cannot readily be translated into dollars. In addition, this perspective does not take into account the sharp political costs of terrorism in the attending public perceptions of government inaction.282

Early U.S. Responses

In the wake of the 1988 bombing of Pan-Am Flight 103 over Lockerbie, Scotland, the FAA announced sweeping proposals to fight terrorism and revamp security measures.283 The agency increased security requirements for searching and tracing baggage on overseas flights, and proposed both large fines against 26 airlines for failure to detect test objects and a rule that required bomb-detection equipment at airports.284

The White House Commission on Aviation Security and Terrorism was formed by executive order in August 1989 in response to the bombing. The Commission endorsed many of the proposals that had been made by the FAA, and released its own report in May 1990, concluding that the air-security system was “seriously flawed,” and calling for sweeping reform.285 Among the recommendations the commission made were: (1) to use U.S. military forces against air terrorists; (2) to adopt foreign policies to isolate state sponsors of terrorism; (3) to notify all passengers in cases of credible bomb threats; (4) to cancel the FAA’s order to install $175 million worth of plastic-explosive detection devices (because such devices would probably not have detected the bomb that blew up Flight 103); (5) to create a high-level federal coordinator to oversee air security and intelligence; and (6) to update screening, training and testing of ground security crews, including criminal background checks of all airport workers. In November 1990, President Bush signed the Aviation Security Improvement Act, which mandated many of the improvements suggested by the Commission.

Unfortunately, many of these proposals never developed very far. The plan to require installation of millions of dollars worth of new bomb-detection machines at various airports generated debate over how well a bomb-detection machine must work before it is worth deploying.286 A somewhat “all-or-nothing” mindset, as well as concerns over whether the technology worked well enough to justify its expense, ultimately caused the plan to founder.

The plan to require criminal background checks on many airline workers met with great resistance. Critics argued that there had never been a case of an employee with a criminal record joining in a terrorist plot, and that the proposal was thus a waste of money.287 The FAA was finally able to adopt a diluted version of the rule in 1995.288 This version provided that those already working for the airlines were exempted from the fingerprint checks, carriers were required to ask for job histories of new employees with access to restricted areas, and airlines were given the authority to seek checks of FBI fingerprint records as the need arose.289

A plan to impose heavy fines on airlines for failure to detect undercover test objects sent through baggage checks also generated negative feedback from the airlines. The FAA ultimately limited use of fines to only the most blatant cases where airport screeners failed to detect guns and bomb parts.290

Responses under the Clinton Administration

Even before the explosion of TWA Flight 800, a broad consensus had developed in the government and aviation industry that terrorism posed a greater threat to air travel than ever before.291 While the cause of the explosion remains uncertain, the initial reaction to this event thrust the issue of terrorism and airline safety back into the public spotlight, and prompted rapid government reaction.

Soon after the TWA explosion, President Clinton asked Vice President Gore to chair the Aviation Safety and Security Commission. On September 9, 1996, the Commission made the following recommendations: (1) use automated profiling of all airline passengers based on information already available in computer data bases; (2) develop better ways to profile travelers so as to spot terrorists; (3) purchase sophisticated bomb detection devices; (4) train and deploy 115 new bomb-sniffing dogs and handler teams; (5) screen, train, certify and test airport security personnel; (6) match every bag loaded onto a plane with a passenger; (7) perform criminal background and fingerprint checks of airline and airport employees; and (8) expand the role of U.S. Customs Service, FBI, CIA and other agencies in detecting terrorists.

Following the release of the Commission’s report, President Clinton proposed $1.1 billion in new spending to tighten airline security and fight terrorism.292 This proposal tied together several long-standing anti-terror initiatives as well as the recommendations of the Commission. $429 million dollars is slated for the aviation security measures urged by the Commission and $667 million is slated for anti-terrorism spending at a variety of federal agencies.293

The Clinton Administration also announced that the federal government will for the first time assume much of the cost and responsibility for airline security.294 This is consistent with the growing sentiment that terrorism is a national security problem, not merely an air safety issue. As Vice President Gore remarked, “[t]errorist actions against Americans on U.S. airliners represent an attack against the United States . . . there is clearly a national interest in combating this threat.”295 However, airlines will remain responsible for some expenses, such as the costs associated with the proposed passenger-baggage match program.296

Comments/Conclusions

The steps the federal government has taken toward improving the safety of air travel seem at first glance comprehensive and promising. However, similar initiatives have been suggested before and have failed. Politics often impedes the transition of proposals into reality, but there may also be good reasons why some past initiatives have not gotten very far. Today’s proposals must be closely examined to determine whether they are sound as well as realistic.

One of the proposals calls for the purchase of sophisticated bomb detection devices, such as computer tomography detection systems (CTX 5000s) and vapor trace particle detectors. As before, this plan raises questions concerning both the cost and success rate of these technologies. A foolproof or “complete detection” system simply does not exist. The FAA has certified an explosives-detection machine, the CTX-5000, which costs approximately $1 million.297 In tests it has sounded false alarms about 30% of the time, and it only processes 100 to 125 bags per hour (compared to the 450 bags per hour the airlines say is necessary to avoid delaying flights).298 Because the systems currently in place are fairly inefficient, some think it is better to use the most effective approaches currently available which will probably increase the chances of intercepting explosives. Most recently however, the DOT and the FAA purchased some 79 certified explosives detection systems and advanced technologies for screening of checked bags, with deployment to be completed in 1998.299 In addition, over 50 trace explosives detection devices were deployed in 1997, increasing the total in place from 78 to 128. About 365 more trace detection devices will be purchased and installed by the end of 1998.300

Another key component of the government’s plan is passenger profiling. Profiling entails asking passengers specific questions in order to identify those travelers who pose the highest security risks. Airlines also use information they already have about travelers, such as frequent flier miles, to pre-screen passengers. The anti-terrorist profiling will build on a system already in use by the Customs Service for targeting potential drug couriers flying into the U.S.301 Although profiling can be an effective way to screen for terrorism, it raises issues of violations of civil rights and privacy. The American Civil Liberties Union has already expressed concern about profiling, pointing out that use of profiles is not a sufficient basis for picking out passengers for extra scrutiny and will often involve the use of racial or ethnic stereotypes.302 However, the Supreme Court has previously approved the use of profiling for drug searches at airports,303 and could potentially endorse its use to combat terrorism in an appropriate case.

Moreover, Attorney General Janet Reno recently announced in a report to the Department of Transportation that the FAA-proposed Computer Assisted Passenger Screening System (“CAPS”) does not violate U.S. passenger’s civil liberties.304 CAPS is designed to establish a more controlled screening system in which possible human bias or airline employees’ misapplication of selection criteria are eliminated.305 CAPS was prototyped, tested with Northwest Airlines in 1997, and is being phased in by U.S. airlines in 1998.306 The FAA tested passenger bag matching in 1997 and, on January 1, 1998, augmented the bag-matching program in conjunction with both manual screening and CAPS. 307

The directive involving matching luggage with passengers on every domestic flight is intended to prevent a person from checking a bag and then not boarding the plane. However, airline professionals have stated that they have no idea how to carry out this plan, and have been given little guidance.308 There are over 8 million airline departures annually from U.S. airports, involving more than 1 billion bags,309 posing a huge logistical problem in terms of magnitude and space. Airports will need more room to hold large numbers of people for extended periods of time, as well as room in which to carry out the bag match. In addition, the current passenger-bag match in use for U.S. international flights does not always work well,310 raising concerns about its successful use in domestic services as well. However, on February 12, 1997, the DOT issued a final rule to improve passenger manifests by requiring more information on passenger manifests for flights to or from the United States.311

The requirement for fingerprinting and background checks for airline personnel raises concerns similar to those made after the Lockerbie explosion. An Air Transportation Association official commented that the requirement looks like an intrusion with no enforcement payoffs, because none of those persons charged or convicted of a terrorist act in recent years has had a criminal record.312 In addition, it takes 2-3 months for police responses on background checks, a considerable lag time.313 Moreover, criminal background checks on airport personnel are prohibited unless there is an unexplained period of unemployment within the prior ten years.314 Thus, these requirements may have no beneficial impact at all.

TWA FLIGHT 800

On July 17, 1996, TWA Flight 800 exploded over the Atlantic Ocean shortly after taking off from Kennedy Airport.315 The tragic loss of 230 persons on that flight stunned the world. It also prompted the largest transportation accident investigation in American, and perhaps world, history, led by the NTSB.316 After nearly two years of the most extensive investigation in the history of aviation, the NTSB has not yet identified the probable cause of this accident. However, what has emerged is a focus on the explosive characteristics and the potential sources of ignition of the fuel/air vapors, which led to an explosion in the nearly empty center wing fuel tank,317 as well as the expansion of the FAA’s aging aircraft program to include such non-structural aircraft components as electrical wiring.318

A. Explosive Fuel/Air Mixtures and Potential Ignition Sources Inside Fuel Tanks

There have been some 25 fuel air explosions on aircraft since 1959.319 Much still needs to be learned about the explosive characteristics of Jet A fuel, the elements required to ignite the vapors associated with fuels, the temperature and vibrational characteristics associated with airplane fuel tanks, and the vapor concentrations in the tanks.320 In this regard, the NTSB has been conducting the following tests in laboratories all around the world: 1) laboratory studies of Jet A fuel; 2) flight tests on Boeing 747/100 aircraft; 3) chemical characterization of Jet A vapor; 4) Bruntingthorpe B-747/100 explosion tests; 5) quarter scale explosion testing; and 6) computer modeling.321 NTSB Investigator Dan Bower recently stated in connection with the TWA Flight 800 investigation, “we saw a lot of warm temperatures in the components, which raises the question: how do we keep those warm temperatures from reaching the tank?”322

In addition, the NTSB has generally six primary ignition scenarios or theories currently being pursued as to the cause of the accident: 1) center tank scavenge pump; 2) static electricity; 3) fuel quantity indicating system; 4) No. 3 fuel tank electrical conduit; 5) small explosive charge; and 6) high speed particle penetration — all of which are still being investigated.323

As a result, the NTSB has made four recommendations to the FAA which urge both short-term and long term actions to reduce the potential for a fuel/air vapor explosion in the center fuel tanks of Boeing 747s, as well as in fuel tanks of other aircraft.324 The NTSB suggested possible means to reduce the explosive potential of the fuel vapor, such as adding cold fuel to the center tank before takeoff, providing insulation or other methods to reduce the transfer of heat from the air conditioning units beneath the center tank, or insulating the tank by replacing the explosive vapor with a harmless gas.325 Although the aviation industry has not completely embraced these recommendations, the industry plans to undertake a survey of aircraft or major fuel tank inspection programs to verify the integrity of wiring and grounding straps; the conditions of fuel pumps, fuel lines and fittings; and the electrical bonding on all equipment including 747s, Airbuses and aircraft of other manufacturers.326

To date, a few of the most noteworthy FAA’s actions in response to the recommendations issued by the NTSB are in eleven areas.327 First, the FAA has been working with Boeing on a service bulletin that will provide instructions for inspection of fuel quantity indicating system (“FQIS”) wiring inside Boeing 747 fuel tanks.328 The FAA plans to issue a Notice of Proposed Rulemaking (“NPRM”) later this spring that would require the inspections.329

Second, the FAA has been working with Boeing on a service bulletin that will provide instructions to replace Honeywell series 1 through series 3 terminal blocks with newer blocks that have smooth surfaces and no sharp edges.330 The FAA plans to issue an Airworthiness Directive (“AD”) this summer following Boeing’s service bulletin.331

Third, the FAA is preparing a Special Federal Aviation Regulation (“SFAR”) that would require manufacturers to develop an FAA-approved fuel tank maintenance and inspection program based on the TWA 800 investigation.332 It would also require operators to have an FAA-approved fuel system maintenance program. The SFAR also will require manufacturers to review the original fuel system ignition source.333 An evaluation of the need for electrical transient suppression, or surge protection, will be a part of this revalidation.334

Fourth, the FAA supports a manufacturer-initiated inspection program to assess the in-service condition of fuel systems in large transport airplanes.335 Fifth, the FAA and the NTSB continue to examine the effects of copper sulfur deposits on the FQIS components in the fuel tank.336 Sixth, the FAA issued an NPRM AD on December 1, 1997, to enhance the protection of the FQIS of 747’s against transient electrical voltage spikes or short circuits.337 It requires installation of components to suppress electrical transients and/or the installation of wire shielding and separation of FQIS wiring from other aircraft wiring.338 The actions specified by the NPRM are intended to prevent electrical transients induced by electromagnetic interference or electrical short circuit conditions from causing arcing of the FQIS electrical wiring or probes in the fuel tank, which could result in a source of ignition in the fuel tank.339

Seventh, the FAA issued an AD on December 1, 1997, to require disconnection of the electrical connector to the scavenge pump of the center wing tank of certain Boeing Model 747 series airplanes.340 This AD is prompted by findings from a design review and analysis of scavenge pumps installed on certain Boeing Model 747 series airplanes and is intended to prevent potential failures within the electrical motor assembly of the scavenge pump, which could result in leakage of fuel from the electrical connector into the main landing gear wheel well, or electrical arcing within the scavenge pump motor. These conditions could result in a fuel fire in the wheel well.341

Eighth, the FAA issued an AD on December 12, 1997, to require (i) repetitive inspections to detect damage of the sleeving and wire bundles of the boost pumps of the numbers 1 and 4 main fuel tanks and of the auxiliary tank jettison pumps; and (ii) replacement of any damaged sleeving and wires.342 This AD is intended to detect and correct abrasion of the Teflon sleeving and wires in the bundles of the fuel boost pumps for the numbers 1 and 4 main fuel tanks and of the auxiliary tank jettison pumps, which could result in electrical arcing between the wires and the aluminum conduit and consequent fire or explosion of the fuel tank.343

Ninth, the FAA is continuing its review of different models of Boeing aircraft to determine if wire separation and shielding is needed.344 Tenth, in January, 1997, the FAA directed the Aviation Rulemaking Advisory Committee (“ARAC”) to recommend how to reduce or eliminate explosive fuel/air mixtures potential ignition sources in fuel tanks.345

Eleventh, the FAA is investigating several ways to lessen the risk of explosion, including foam, nitrogen insertion and venting.346

The FAA, as part of a continuing effort to address fuel tank ignition sources, will be sending to the Federal Register a proposed AD, applicable to operators of Boeing 737 aircraft, intended to prevent possible ignition sources of fuel vapors in fuel tanks.347 The proposed AD seeks to enhance the protection of the FQIS on Boeing 737 aircraft against short circuits.348 It would require installing transient suppression components, and/or shielding and separation to the fuel system wiring that is routed to the fuel tanks from adjacent wiring.349

Most recently, the FAA ordered airlines to inspect 737 fuel pump wires on planes with 30,000 to 40,000 flight hours within 45 days.350 The action, which also requires the addition of a second layer of Teflon protection on the wires, was taken following a detailed analysis of data obtained following the inspection of at least 195 aircraft with 40,000 or more hours of service.351 There are 1,140 Boeing 737s registered in the United States and 2,772 worldwide.352 On May 7, 1998, the FAA ordered a 7-day inspection period for both the main and center pump wiring on planes with 50,000 or more hours.353 On May 10, 1998 that order was amended to drop the inspection of the center pump wires for the -200 series aircraft, require inspection of the main pump wiring before further flight, and to require the inspection of both sets of wires in the 40,000 – 50,000 hour category on the -300, -400 and -500 models.

For aircraft having flight and mechanical conditions closely similar to those of TWA Flight 800, the aviation industry has an obligation to the public to learn more about the characteristics associated with Jet A fuel and its explosive tendencies, as well as the aging of electrical wiring associated with fuel pumps and systems, in order to make flying as safe as technologically possible.

B. Aging Fleet

Aircraft age is a serious problem.354 The average age of commercial airline fleets is continuing to increase.355 By the year 2000, more than 2,500 commercial aircraft in the United States may be flying beyond their original design lives.356 In 1988, a major incident in which the top peeled off an Aloha Airlines Boeing 737 in flight, sweeping a flight attendant to her death, was blamed on weak maintenance of the old aircraft’s structure.357 In response, to help ensure the safety of aging jet frames and exteriors, the FAA greatly expanded its structural integrity inspection program and formed the Airworthiness Assurance Working Group (AAWG).358 As a result, some of the FAA’s most recent actions include the issuance of two ADs. The first AD pertains to certain areas of the wing struts of certain Boeing Model 747-100, -200, and -300 series airplanes.359 This action requires repetitive detailed visual and/or borescope inspections to detect discrepancies of certain areas of the wing strut.360 The actions specified in this AD are intended to detect and correct fatigue cracking and stress corrosion of the wing strut, which could result in failure of the strut-to-wing interface, and consequent separation of the engine and strut from the airplane.361 The second AD requires an internal visual inspection to detect cracks of the skin and internal doublers above main entry door 1 at body station 460 of certain Boeing Model 747 series airplanes, and various follow-up actions.362 This AD was prompted by reports indicating that multiple fatigue cracks were found in both internal skin doublers, and is intended to detect and correct such fatigue cracking, which could result in reduced structural integrity of the fuselage and consequent rapid depressurization of the cabin.363 In addition, the FAA has recently issued a Notice of Proposed Rulemaking (“NPRM”). The NPRM would require repetitive detailed visual inspections for corrosion, repetitive high frequency current inspections for cracks of the upper link assembly on the number 2 and number 3 engine struts, and corrective actions, if necessary.364 This NPRM was prompted by reports of corrosion and cracks located at the four fasteners that attach to the aft end to the upper link assembly on the number 2 and number 3 engine struts, and is intended to prevent failure of the upper link due to cracking or corrosion, subsequent damage to other strut support structure, and in-flight separation of an engine from the airplane.365

However, little is known about the potential effects of age on non-structural components of commercial aircraft.366 Non-structural components include electrical wiring; connectors, wiring harnesses, and cables; fuel, hydraulic and pneumatic lines; and electro-mechanical systems such as pumps, sensors and actuators.367 During the NTSB’s hearings into the explosion of TWA Flight 800, the Board questioned the failure of past reviews of aging aircraft to address worn wiring and fuel systems.368 Twenty-five years old, Flight 800 aircraft was past its age limit.369 Senator John McCain, Chairman of the Senate Committee on Commerce, Science and Transportation, has previously stated that frayed wiring seemed to be one of the likely causes of the explosion of TWA Flight 800.370 The White House Commission on Aviation Safety and Security is also concerned that existing procedures, directives, quality assurance, and inspections may not be sufficient to prevent safety related problems caused by the corrosive and deteriorating effects of non-structural components of commercial aircraft as they age.371 Thus, the Commission has recommended that the FAA work with airlines and manufacturers to expand the aging aircraft program to include non-structural components. Proposed plans include: full and complete tear-downs of selected aircraft scheduled to go out of service; the establishment of a lead-the-fleet research program; expansion of the FAA-DOD-NASA cooperative aging aircraft program; expansion of programs of the AAWG to include non-structural components; and encouraging the development of modern technical means to ensure and predict the continued airworthiness of aging non-structural components and systems.372 However, Mary Schiavo, the former Inspector General of the DOT, indicated that inspectors cannot examine many components of commercial aircraft — that planes were built for a maximum safe lifespan of 20 years,373 and thereafter may encounter trouble; and further, that by the year 2000, 40 percent of the fleet is going to be over 20 years old.374

CONCLUSION

This report has presented the major safety hazards plaguing the aviation industry today. As stated at the outset, flying is statistically very safe but it could be even safer. Controlled Flight Into Terrain, approaches to pilot training, language barriers between air traffic controllers and pilots, the need for modernization of the air traffic control system, failure to detect unapproved parts, the need for modernized flight data recorders, the dangers of transport of hazardous materials, the increasing risk of terrorism, the existence of explosive fuel/air mixtures and potential ignition sources inside fuel tanks, and the use of aging aircraft pose continuing challenges to the aviation industry’s safety record. The current limitations in our aviation safety system represent a tremendous potential cost, in terms of both human lives and exposure to liability. Air travel is too vital to global commerce, economic development, world travel and tourism to have its reputation and its future put at risk.375

In 1995, then-FAA Administrator David Hinson challenged the aviation industry to achieve “Zero Accidents.”376 The anticipated growth in aviation between now and the first quarter of the next century may lead to the occurrence of aviation accidents at a frequency that will be wholly unacceptable to the public.377 Therefore, the industry can and must establish clear and focused methods of achieving a zero accident rate. The present FAA Administrator, Jane Garvey, has stated that the FAA’s mission is to reduce the accident rate. In order to accomplish this mission, the FAA is adopting a two-pronged approach by (a) developing a focused safety agenda, and (b) by strengthening alliances and partnerships with all segments of aviation.378 Moreover, the White House Commission on Aviation Safety and Security believes that improving levels of aviation safety, security and modernization should be a national priority, resulting in a re-definition of aviation safety and security for the rest of the world.379 The American public deserves an absolute commitment to achieving this goal.

COMMITTEE ON AERONAUTICS

Shephard W. Melzer, Chair

Susan Sullivan Bisceglia, Secretary

Arthur Schiff, Treasurer

The Aeronautics Committee would like to thank the following individuals for their assistance in preparing this report:

Jonathan N. Santelli, Associate, Rogers & Wells;

J. Francis Cooke, Associate, Rogers & Wells;

Kimberly S. Loepp, Summer Associate, Rogers & Wells; and

Michelle Bowe, Former Associate, Rogers & Wells.

The Aeronautics Committee expresses its appreciation to the following individuals for their contributions in providing important information for this report:

Phil Boyer, President, Aircraft Owners and Pilots Association;

Arlene Feldman, Regional Administrator, Federal Aviation Administration;

Al Graser, Assistant Director of Airports, Port Authority of New York and New Jersey;

Robert Kelley, Director of Airports, Port Authority of New York and New Jersey;

Gary Kitley, Executive Director of the Council on Aviation Accreditation; and

Joseph Montone, FAA Designated Examiner, and Part 121 Check Airmen and Instructor.