Instead of Frustration, Take the Agency to Court

The easy things have been done now 10 years after the Swissair flight 111 accident and 12 years after the TWA flight 800 disaster, which together killed 459 people. But real improvements to air safety remain dead in the water.

The proximate cause of both crashes: flawed electrical wiring. The two crashes provide ample evidence that wiring failures can cost lives. In 1996, TWA flight 800, a B747-100, went down off the coast of Long Island because of the ignition of fuel/air vapors by an electrical arc in fuel tank wiring. Two years later, in 1998, Swissair flight 111, an MD-11, went down off the coast of Nova Scotia after a fire, caused by electrical arcing, spread through insulation blankets above the cockpit ceiling, shutting down the electrical systems that controlled the plane.

What has happened since? The U.S. National Transportation Safety Board (NTSB) issued 15 recommendations as a result of the TWA flight 800 crash. Only six recommendations have been closed with an “Acceptable Action” rating – for an overall implementation rate of some 40%. But how some of these recommendations were closed with an “Acceptable Action” rating is something of a mystery, and a close reading of the voluminous correspondence concerning the whole set of recommendations reveals a Federal Aviation Administration (FAA) pattern of delay, partial measures, and outright obstructionism. (See Aviation Safety & Security Digest, ‘Twelve Years of Half Measures,’ home page.)

The Canadian Transportation Safety Board (TSB) has fared even worse with recommendations it issued as a result of findings in the Swissair crash. Only five of 23 recommendations have been fully implemented, for a success rate of just 21%. (See Aviation Safety & Security Digest, ‘A Decade of Minimal Action’ and ‘Canadian Investigators Decry Failure to Enact Safety Recommendations,’ home page.)

TSB Member Jonathan Seymour noted that as a result of the Swissair crash the FAA ordered the removal of metallized Mylar insulation blankets from about 700 Douglas-built aircraft, but his take on the current situation is revealing:

“Substantive action has not been taken to comprehensively review the remaining types of insulation currently in use … Instead, regulators [meaning the FAA] are relying on in-service performance to be the catalyst for further safety action. In other words, a material has to fail [burn] before action is taken.”

Since the fire was started by electrical arcing in a bundle of electrical wires, Member Seymour was even more distressed about the lack of action on realistic qualification tests:

“[A]ction has not yet been taken to address our recommendation to establish a test regime that evaluates aircraft electrical wire failure characteristics under realistic operating conditions … Testing a single [unpowered] wire does not necessarily predict what will happen when that wire is bundled and carries a load …”

Make no mistake, the Swissair and TWA accidents may have occurred a decade or more ago, but due to FAA lassitude, the danger remains. On 29 June of this year a B767 freighter operated by Airborne Express experienced a fire on the ground that looks remarkably like the one that downed the Swissair jet. (See Aviation Safety & Security Digest, ‘Cargo Jet Fire Seems a Replay of Deadly Inferno,’ home page.)

And in August 2007 a China Air Lines B737 was destroyed on the taxiway by a fire that originated in a wing fuel tank.

I believe there are two related reasons why both the NTSB and the TSB have achieved such a low compliance rate with their recommendations. The first is that these investigative agencies may be issuing too many recommendations. A passel of recommendations may simply overwhelm the FAA. The NTSB highlighted the most direct cause of the TWA flight 800 crash: the presence of flammable vapors in the fuel tanks. About four or so recommendations, instead of 15, would suffice to address and eliminate that hazard.

Similarly, the TSB noted that if flammable materials were not present, airliners would not be victims of runaway fires. About a half-dozen recommendations, instead of 23, strategically worded, ought to suffice.

Second, the recommendations lack teeth – if the FAA sits on them, other than potential embarrassment, there is no penalty for inaction. Nobody at the FAA has ever been replaced for failing to enact a safety recommendation.

Thus, my second recommendation: the NTSB (acting for itself and on behalf of the TSB) could take the FAA to court. Under a writ of mandamus (Latin for “we order”), the court can order a government body like the FAA to implement a recommendation when it has neglected or refused to do so.

The effect of taking the FAA to court would have four salutary effects: (1) the NTSB would not be seen as toothless and ineffectual, (2) the NTSB (and by implication the TSB) would restrict recommendations to the most important ones worth taking the FAA to court for an explanation as to delayed implementation, (3) the mere threat of such legal action may stimulate the FAA to more seriously consider the price of inaction, and (4) such court proceedings would certainly interest the oversight committees in Congress as to why the FAA was being dragged before the bar to explain itself (with obvious implications for FAA staffing and funding).

Oh, and there is a fifth reason for threatening or taking the FAA to court: a recommendation delayed is safety denied.