[00:00:00] Speaker 06:
Case number 16, that's 1356.

[00:00:03] Speaker 06:
Airmotive Engineering Corporation and L Petitioners versus Federal Aviation Administration.

[00:00:11] Speaker 06:
Ms.

[00:00:11] Speaker 06:
Ferguson for the petitioners, Ms.

[00:00:13] Speaker 06:
Marin for the respondent.

[00:00:28] Speaker 04:
All right, Ms.

[00:00:29] Speaker 04:
Ferguson.

[00:00:30] Speaker 05:
Good morning.

[00:00:33] Speaker 05:
May I please the court?

[00:00:34] Speaker 05:
My name is Laura Ferguson.

[00:00:35] Speaker 05:
I'm arguing on behalf of Aeromotive Engineering Corporation and Engine Components International, whose part is subject to the airworthiness directive at issue.

[00:00:44] Speaker 05:
This court should reverse and remand the airworthiness directive because the FAA's conclusion that petitioners' engine cylinders present an unsafe condition is not supported by substantial evidence and is not the product of reasoned decision making.

[00:00:59] Speaker 05:
The part of the issue is the cylinder used on reciprocating engines which are installed in small airplanes.

[00:01:05] Speaker 05:
When this type of cylinder fails, it causes approximately 20% loss of engine power to the affected engine.

[00:01:14] Speaker 05:
Most of the cylinders at issue in this case were installed on dual engine airplanes where the loss of a single cylinder would have an even less significant impact.

[00:01:23] Speaker 05:
Under the FAA's own risk assessment policies for small airplanes, a partial loss of engine power is not an unsafe condition that would warrant an airworthiness directive.

[00:01:34] Speaker 05:
When the FAA issued this proposed rule making the airworthiness directive, it was met with overwhelmingly negative reaction.

[00:01:42] Speaker 05:
In the end, the AVE received over 650 comments.

[00:01:46] Speaker 05:
And by its own acknowledgment, 99% of them were opposed to the Airworthiness Directive.

[00:01:50] Speaker 05:
Well, that's understandable, isn't it?

[00:01:54] Speaker 05:
You know, a number of the commenters were pilots.

[00:01:56] Speaker 05:
Pilots associations.

[00:01:57] Speaker 03:
I do.

[00:01:57] Speaker 03:
I do.

[00:01:58] Speaker 03:
I do.

[00:01:58] Speaker 03:
It wasn't 100% right.

[00:02:01] Speaker 03:
And despite several- So you said just then, as I thought you said, loss of power is not a basis for an Air Directive, period.

[00:02:12] Speaker 05:
The FAA in its own risk assessment policies does not treat it as a hazardous event.

[00:02:18] Speaker 05:
Under the small airplane risk assessment methodology, there's hazard rankings that go from one to five.

[00:02:25] Speaker 05:
and it doesn't treat, and only those that are around three to five.

[00:02:28] Speaker 05:
I'm with you, but what about the other evidence?

[00:02:30] Speaker 03:
What about the other?

[00:02:31] Speaker 05:
So what happened then is when there's this negative reaction, the FAA assembles this challenge team, and the challenge team does a risk assessment under this small airplane risk assessment, CERA system, that calculates risk based on number of fatalities.

[00:02:47] Speaker 05:
So this challenge team risk assessment, which is the only risk assessment we have in the administrative record,

[00:02:53] Speaker 05:
basis of the conclusion that an airworthiness directive would be warranted solely entirely based on linking the cylinders, the ECI cylinders at issue to two fatal airplane accidents, a 2002 New Hampshire crash and a 2010 accident in the Bahamas.

[00:03:12] Speaker 05:
The problem here is that

[00:03:16] Speaker 05:
Those accident reports were not included in the administrative record.

[00:03:19] Speaker 05:
They were not put on the record until three months after the final rule was issued and one month after the petition was issued.

[00:03:25] Speaker 03:
So at that point, did you move for reconsideration?

[00:03:31] Speaker 05:
We did not move for reconsideration.

[00:03:33] Speaker 05:
No, Your Honor.

[00:03:35] Speaker 05:
There was references to the fatal crashes and the final rule.

[00:03:39] Speaker 05:
And if you actually look at the reports, the New Hampshire crash report does not assess causation.

[00:03:46] Speaker 05:
The Bahamas report does assess causation, but identifies multiple pilot errors that led to the accident.

[00:03:55] Speaker 05:
So what we have here is a

[00:03:58] Speaker 05:
a condition that causes partial power loss to an engine if it occurs.

[00:04:05] Speaker 05:
And that, under the EPA's own policies, didn't warrant an airworthiness directive.

[00:04:10] Speaker 05:
So to create a basis for this comment.

[00:04:16] Speaker 05:
Well, so fires, we can talk about fires, for example.

[00:04:20] Speaker 05:
The final rule says cylinder failures can cause fires.

[00:04:24] Speaker 01:
Well, in this third-

[00:04:28] Speaker 05:
Well, there was only two examples they provided.

[00:04:35] Speaker 05:
Well, but of the two, in a 30-year period, neither of them involved the cylinders at issue.

[00:04:41] Speaker 05:
But one of them was apparently a 1987 accident.

[00:04:47] Speaker 05:
where there was supposed to be a fire, but we have no documentation of that in the record to know if a cylinder even caused that.

[00:04:59] Speaker 01:
established to be these cylinders.

[00:05:01] Speaker 01:
Nonetheless, there would be evidence that a failure by separation can cause fire.

[00:05:06] Speaker 05:
Certainly, which is why it's surprising that if the FA was looking at 30 years and wasn't just focused on the ECI cylinders, they could only find two examples of any fires.

[00:05:18] Speaker 05:
In both cases, the planes landed safely, and we don't have documentation as to one of them to even know if the cylinder caused the fire.

[00:05:26] Speaker 05:
And I would also add that under the FAA's own risk assessment methodology, it's only an uncontained fire that is a sort of unsafe condition, a hazardous event.

[00:05:40] Speaker 05:
So fires can happen, but there's all sorts of containment systems.

[00:05:45] Speaker 05:
So even though they could only identify two instances in 30 years, the plane landed safely.

[00:05:50] Speaker 05:
And if it was fires they were worried about as the unsafe condition, then they had to assess the likelihood that those fires would be caused by cylinder failure, and they didn't do that.

[00:05:58] Speaker 03:
So is your position that the agency could not issue its advisory despite the evidence it gathered, because essentially it would have to be able to find a 100% risk before issuing the advisory?

[00:06:18] Speaker 03:
and a direct cause.

[00:06:22] Speaker 05:
What we are arguing is that the FAA has

[00:06:28] Speaker 05:
risk assessment methodologies for determining when airworthy instructives are warranted.

[00:06:32] Speaker 05:
So the regulation says that an airworthy instructive should be issued when there's an unsafe condition.

[00:06:37] Speaker 05:
And so the FAA has developed policies and methodologies for deciding when particular hazards create a sufficiently unsafe condition to issue an airworthy instructive.

[00:06:49] Speaker 03:
And they didn't follow those here.

[00:06:51] Speaker 03:
So we're all in agreement up to there.

[00:06:52] Speaker 03:
And so what did they not do?

[00:06:55] Speaker 05:
What they did was wrongly attribute two fatal accidents to these cylinders, which then created a hazard.

[00:07:04] Speaker 03:
That's why I asked you, are you saying they could only issue the advisory if they could show a direct cause as opposed to a precipitating event that leads to other things that create problems that lead to... You're speaking particularly about the two accidents.

[00:07:24] Speaker 03:
I'm speaking in response to your arguments.

[00:07:28] Speaker 05:
Well, I mean, certainly the fact that a part is installed on an airplane that has an accident doesn't mean that all the parts that are on the plane are suddenly associated with an unsafe position.

[00:07:37] Speaker 03:
No question about it.

[00:07:38] Speaker 05:
That's not the agency's position.

[00:07:42] Speaker 05:
Even if you were to assume that the two

[00:07:46] Speaker 05:
fatal accidents were caused by these cylinders.

[00:07:49] Speaker 05:
And as I say, those accident reports weren't part of the record, and the New Hampshire report doesn't assess causation.

[00:07:56] Speaker 05:
But even if you assume that, then under the FAA's own methodology, they were to have assessed the likelihood that cylinder failures would cause fatalities.

[00:08:05] Speaker 05:
And they didn't do that.

[00:08:06] Speaker 05:
They assessed the likelihood that a cylinder would fail.

[00:08:09] Speaker 05:
when the FA's own methodology say that you're supposed to assess the likelihood of the hazards of fact or outcome.

[00:08:15] Speaker 05:
So they did their own risk assessment methodology wrong in terms of assessing likelihood.

[00:08:20] Speaker 03:
Well, that's because you're reading that as a direct cause requirement.

[00:08:26] Speaker 03:
And the agency isn't, right?

[00:08:32] Speaker 05:
There has to be some way to test weather.

[00:08:35] Speaker 03:
Something goes wrong in the plane.

[00:08:36] Speaker 03:
Right.

[00:08:37] Speaker 03:
All right?

[00:08:37] Speaker 03:
The cylinder separates.

[00:08:39] Speaker 03:
It cracks.

[00:08:41] Speaker 03:
Then true pilots have been able to land safely.

[00:08:46] Speaker 03:
No one is injured.

[00:08:48] Speaker 03:
Right.

[00:08:49] Speaker 03:
But it could lead to other things.

[00:08:52] Speaker 03:
And who knows what the weather is when the conditions occur, et cetera.

[00:08:56] Speaker 03:
And so this mosaic of evidence is enough to put out an advisory.

[00:09:06] Speaker 03:
And furthermore, the industry itself makes some changes.

[00:09:12] Speaker 03:
And since 2009, there haven't been any more incidents suggesting, perhaps, that the advisory was warranted, no?

[00:09:21] Speaker 05:
Well, certainly.

[00:09:25] Speaker 05:
The cylinders that are subject to the airworthy and destructive were manufactured to the required specifications.

[00:09:32] Speaker 05:
That doesn't mean that improvements can't be made, right?

[00:09:36] Speaker 05:
So, I mean, I drive a car with blind spot detectors.

[00:09:39] Speaker 05:
That doesn't mean that just because that safety technology, that improvement's available, that all the other cars that don't have that should be taken off the market.

[00:09:45] Speaker 05:
So I don't think it's reasonable to penalize them for it.

[00:09:47] Speaker 03:
But just because the transportation department puts out an advisory saying you ought to be concerned about your airbags,

[00:09:55] Speaker 03:
and that adversely affects the airbag manufacturer.

[00:09:59] Speaker 03:
I mean that's what I'm trying to get at.

[00:10:02] Speaker 05:
But there needs to be a conclusion that

[00:10:05] Speaker 05:
the part at issue without regard to whether it could have been subsequently improved or whether other people that made the part had a similar failure rate, whether the part at issue fails at a particular rate and is associated with particular hazard outcomes that are severe enough and are at risk of happening frequently enough to warrant an error-worthiness directive.

[00:10:30] Speaker 05:
So when the FAA attempts to support its rule by citing these potentially hazardous situations, they talk about fires, but they have no evidence of fires except for these two.

[00:10:41] Speaker 01:
I thought you admitted that they had evidence of fires that may have been caused by the separation setting.

[00:10:47] Speaker 05:
I said except those two that I mentioned.

[00:10:50] Speaker 01:
And I asked you how many they have to have, and I don't think I ever got an answer to that.

[00:10:54] Speaker 05:
Well, it's not clear that the two were caused by the cylinder failures, at least as to the 1987 one.

[00:11:00] Speaker 05:
We have no idea.

[00:11:02] Speaker 05:
But if it's just one fire in 30 years caused by any cylinder failure ever, and that was a contained fire where the plane landed safely, then that's not a reason to impose an AHA.

[00:11:13] Speaker 01:
You came back and said they only found two.

[00:11:16] Speaker 01:
And that process got me to the head to find, and I don't think I've heard any answer to that question.

[00:11:25] Speaker 05:
Well, it depends on whether you're going to use the small airplane risk assessment methodology.

[00:11:30] Speaker 05:
That would require associating them with fatalities.

[00:11:32] Speaker 05:
There were no fatalities associated with those two fire events.

[00:11:36] Speaker 05:
And if you use the rule 8040.4a safety risk management policy, you use that matrix, which we included on our brief, where you calculate the likelihood of the fire occurring and then there's a hazard rating based on whether it caused serious injury or fatalities.

[00:11:56] Speaker 05:
Here, they didn't cause that.

[00:11:58] Speaker 05:
And that the probability would also be so low that it wouldn't put you in that red zone, which would support an airworthiness directive.

[00:12:06] Speaker 01:
So you would say they have to be in the red zone to have an airworthiness directive?

[00:12:10] Speaker 01:
Is that what you're saying?

[00:12:11] Speaker 05:
It's only yes one that pulls products off the market.

[00:12:15] Speaker 05:
This airworthiness directive imposed an $88 million cost of compliance for

[00:12:19] Speaker 05:
Cylinder failures, which have generally been considered to be very manageable.

[00:12:23] Speaker 01:
I think there's a lot more answer than I was asking for.

[00:12:25] Speaker 01:
Would your answer yes to the question that I asked?

[00:12:29] Speaker 05:
Yes.

[00:12:29] Speaker 05:
Sorry, Your Honor.

[00:12:30] Speaker 01:
Now, as I reach your conclusion, you're asking us to remand the matter to the FAA for a new risk assessment, one which follows the agency's own risk assessment methodology, and would be supported by substantial evidence.

[00:12:46] Speaker 01:
We like to be able to

[00:12:49] Speaker 01:
put in our orders on remand exactly what we're telling an agency to do.

[00:12:57] Speaker 01:
What is it that we would say they're supposed to do so far as complying with their own risk assessment methodologies that they didn't do in this case?

[00:13:06] Speaker 05:
Well, I don't think it's a reasonable inference from the facts to have attributed the fatalities to the ECI cylinder.

[00:13:14] Speaker 01:
So if they have to take those off the table, they have to assess... Tell me how we would word the order that tells them how they're supposed to comply with their own methodology.

[00:13:24] Speaker 05:
that the agency should assess the risk without attributing these two fatal accidents to the cylinders, because there's not substantial evidence to support the finding that these cylinders cause fatalities.

[00:13:40] Speaker 05:
And I will say, we take a model, the D&F Afonso Realty versus Garvey case, where

[00:13:47] Speaker 05:
the FAA had decided that a structure near an airfield created a hazard and didn't use its own sort of hazard handbook and followed that methodology.

[00:13:58] Speaker 05:
And this court said, we're not just required to take your say-so FAA, that something creates a hazard.

[00:14:05] Speaker 05:
You need to follow your own methodology, you need to show your work, and remanded for them to do just that.

[00:14:10] Speaker 05:
So in that case, we would support to follow as a model.

[00:14:16] Speaker 05:
In addition, I just want to emphasize that the FAA, at the very least, needed to articulate a methodology and show how the facts in the records supported this hazardous finding.

[00:14:32] Speaker 05:
And initially the FAA and the final rules said we're following this rule 80-40 methodology that leads to the matrix, which we included in our brief.

[00:14:43] Speaker 05:
In the government's brief, they say, well, no, no, we're not really following that.

[00:14:47] Speaker 05:
We use this other methodology, which is this CERA methodology that the challenge team used, which turns on fatality.

[00:14:54] Speaker 05:
So whichever method it is, both hinge on attributing fatalities to the ECI cylinders and also the FAA.

[00:15:07] Speaker 05:
failed to appropriately assess likelihood because they looked at the likelihood of a cylinder failure rather than the likelihood of a hazard.

[00:15:14] Speaker 03:
So let me ask you, just following up a little on judgment, Santel's question.

[00:15:19] Speaker 03:
I thought part of your argument here was that even though this was a long, drawn-out consideration by the agency and two supplemental notices,

[00:15:35] Speaker 03:
were issued, various documents were made available.

[00:15:39] Speaker 03:
Yes.

[00:15:41] Speaker 03:
And these are my words, not your words.

[00:15:44] Speaker 03:
Some of the critical documents were not made available.

[00:15:48] Speaker 03:
The most critical.

[00:15:49] Speaker 03:
During the notice and comment period.

[00:15:53] Speaker 03:
You say the most critical.

[00:15:55] Speaker 03:
Right, the two accident reports.

[00:15:57] Speaker 03:
All right.

[00:15:57] Speaker 03:
And that's why I asked you, did you seek reconsideration?

[00:16:02] Speaker 03:
And you said no.

[00:16:03] Speaker 03:
OK.

[00:16:04] Speaker 03:
So apparently, I'll strike that.

[00:16:10] Speaker 03:
So then I thought in your reply brief that you took, reply brief at 19, you pointed out that the government statement in its brief

[00:16:29] Speaker 03:
at 35 was wrong, where the government said at 35 that the directive was consistent with the risk assessment using a risk matrix outlined in order 840.4A.

[00:16:47] Speaker 03:
And the FAA brief says the FAA is not required to use that particular tool and did not do so here.

[00:16:55] Speaker 03:
So I thought your point was that but in the notice

[00:16:59] Speaker 03:
proposed rulemaking, the FAA said it was going to use the 840.

[00:17:05] Speaker 03:
And how can it change now?

[00:17:09] Speaker 03:
So those are sort of two procedural points I'm getting at.

[00:17:12] Speaker 03:
One is that data record

[00:17:19] Speaker 03:
reports analysis on which the FAA relied was not made publicly available prior to the final rule.

[00:17:27] Speaker 03:
And then second, its brief has acknowledged that it didn't follow the methodology it stated it was going to follow.

[00:17:39] Speaker 03:
Is that, am I correct?

[00:17:40] Speaker 05:
That's right.

[00:17:41] Speaker 05:
So the final rule was very clear on the point that it said FAA order 8040.4A requires a risk assessment methodology as outlined in the order.

[00:17:51] Speaker 05:
We performed the risk assessment required by FAA order 8040.4A and concluded that this AD was necessary.

[00:17:58] Speaker 05:
But the problem was that the FAA never provided that risk assessment methodology.

[00:18:04] Speaker 05:
It summarized it in very broad terms in the final rule in the airworthiness directive, but never provided it.

[00:18:12] Speaker 05:
It did cite to this challenge team assessment in the final rule as confirmatory of its approach.

[00:18:19] Speaker 05:
But then when the government filed its brief, it wants to distance itself entirely from this 80-40.4

[00:18:26] Speaker 05:
methodology, which is what the final rule itself said we're following.

[00:18:30] Speaker 05:
So that is very much a problem.

[00:18:32] Speaker 05:
That's one of the examples of why we don't have reasoned decision making here.

[00:18:36] Speaker 05:
To this day, standing here, I don't know what methodology the agency is saying supports its role.

[00:18:45] Speaker 03:
Okay, but my follow-up to you, and then I'll stop, was

[00:18:48] Speaker 03:
In your own reply brief, you state the final rule explicitly stated that it's unsafe condition finding was based on order 8040.4A's risk assessment methodology.

[00:19:03] Speaker 05:
Right.

[00:19:04] Speaker 05:
That's the final rule.

[00:19:06] Speaker 03:
So where's the conflict?

[00:19:10] Speaker 03:
I understand what's unreal.

[00:19:11] Speaker 05:
Just on appeal, the government seems to be distancing itself from that.

[00:19:14] Speaker 03:
Well, but we have to look at what the agency said in the final rule, right?

[00:19:18] Speaker 05:
So if the agency is relying on that Order 8040 methodology, then there should be a remand because, among other things, that methodology was never provided.

[00:19:31] Speaker 05:
What methodology?

[00:19:33] Speaker 05:
That analysis.

[00:19:34] Speaker 05:
The risk assessment methodology done under that

[00:19:38] Speaker 05:
of order under the safety risk management policy that's reflected in that order, that assessment was never provided, was never shared, was never included in the record.

[00:19:48] Speaker 03:
Order 840.4A, that tells you what the methodology is.

[00:19:59] Speaker 05:
It tells you how you would do a risk assessment.

[00:20:04] Speaker 03:
It tells you what the methodology is.

[00:20:08] Speaker 03:
And the FAA, according to your own brief, says they applied that here.

[00:20:14] Speaker 03:
So Judge Santel was asking you, as I understood his question, what didn't they do here?

[00:20:21] Speaker 05:
So they didn't provide the risk assessment, but based on their summary of the risk assessment that they did, they aired by ranking the cylinder failures as creating a hazardous condition because they linked it to fatalities, and they aired in applying that methodology by assessing likelihood based on likelihood of the cylinder failures rather than based on likelihood of the hazardous event, which is what their policy requires.

[00:20:51] Speaker 05:
And I see my time is nearly up, so unless there's other questions.

[00:20:55] Speaker 05:
All right.

[00:20:55] Speaker 05:
Thank you.

[00:20:57] Speaker 04:
Ms.

[00:20:57] Speaker 04:
Moran?

[00:21:07] Speaker 00:
May it please the court, Laura Myron for the FAA.

[00:21:09] Speaker 00:
I'd like to begin by noting that at the time this airworthiness directive was issued, there was an overwhelming consensus that the separation of these cylinders posed an unsafe condition.

[00:21:20] Speaker 00:
There were reports, and this is in the record as well, reports from FAA safety inspectors, reports from the NTSB recommending corrective action.

[00:21:31] Speaker 00:
In response to the separation of these cylinders, there were multiple

[00:21:36] Speaker 00:
service difficulty reports.

[00:21:38] Speaker 00:
Those are in the JA as well.

[00:21:40] Speaker 00:
There are a number of examples of them starting at 8.51 and more in the administrative docket as well.

[00:21:47] Speaker 00:
And there are mandatory service bulletins that are issued by the manufacturer itself detailing continuing problems

[00:21:54] Speaker 00:
caused by the separation of these cylinders.

[00:21:56] Speaker 00:
And we're not talking just about a small diminishment of power.

[00:22:00] Speaker 00:
We're talking about a violent occurrence where a piece of an engine comes apart in flight.

[00:22:07] Speaker 00:
It causes, at minimum, 20% power loss.

[00:22:09] Speaker 00:
But there are a myriad other consequences that result, including loss of engine pressure, engine failure,

[00:22:18] Speaker 00:
damage to other parts of the engine, including the exhaust pipe, in some instances fuel line separation, which can cause fuel to leak into the engine.

[00:22:28] Speaker 00:
which operates at temperatures above the auto ignition point for engine fuel and can cause fire, as is documented in two instances referred to in the record.

[00:22:38] Speaker 00:
There are instances of metal contamination in the engine in increased vibration in airplane engines, which can cause, as is also noted, damage, additional damage to other parts, including the propeller.

[00:22:51] Speaker 00:
The FAA has always considered this to be a very serious safety hazard.

[00:22:55] Speaker 00:
It has issued a number of airworthiness directives previously, dealing with the failure of these both ECI cylinders at issue here and also other kinds of cylinders on the market.

[00:23:07] Speaker 00:
And to suggest at this point that there's not substantial evidence in the record to support the conclusion that this poses an unsafe condition is plainly incorrect.

[00:23:17] Speaker 00:
The agency is required to make two determinations for an error-worthiness directive to be appropriate.

[00:23:23] Speaker 00:
The first is that the part at issue presents an unsafe condition.

[00:23:28] Speaker 00:
And the second is that that unsafe condition is likely to occur in other parts of the same type and design.

[00:23:35] Speaker 00:
And there's certainly substantial evidence in the record before this court and before the agency that would confirm both of those conclusions as appropriate in this instance.

[00:23:45] Speaker 00:
The agency did multiple risk analysis.

[00:23:48] Speaker 00:
It included in the administrative record sufficient evidence of reports from field inspectors, from pilots, from the company itself detailing issues and problems that were continuing to occur with this particular part as a follow on to its previous

[00:24:06] Speaker 00:
airworthiness directive that addressed this very same failure in parts of the same type number with a segment of the serial numbers at issue here.

[00:24:18] Speaker 00:
If I may, just address briefly some of the procedural questions that this court had regarding the record here.

[00:24:25] Speaker 00:
I would encourage you to take a look both at the accident reports which are in the administrative record at JA-52 and at JA-275.

[00:24:35] Speaker 00:
These are the crashes?

[00:24:38] Speaker 00:
Yes, yes sir.

[00:24:39] Speaker 03:
I read both of those.

[00:24:43] Speaker 03:
I don't think that counsel misrepresented what they say.

[00:24:46] Speaker 00:
I don't think they, I didn't mean to imply that they misrepresented what was in them, just to suggest that they are evidence that supports the FAA's conclusion that this does create- Excuse me a minute.

[00:24:58] Speaker 04:
Madam, you either need to stop shaking your head, it's very distracting, or you need to leave the courtroom.

[00:25:04] Speaker 04:
Go ahead.

[00:25:06] Speaker 00:
I only meant to suggest that both of them contain evidence that would substantiate the FAA's conclusion.

[00:25:11] Speaker 00:
In both reports, witnesses account evidence that would contribute to a conclusion that the airplane had suffered a significant mechanical malfunction.

[00:25:20] Speaker 00:
In the New Hampshire report, it refers to the engine sputtering and backfiring.

[00:25:26] Speaker 00:
In the Bahamas report, it refers to white smoke trailing from behind the engine and then goes on to conclude that, excuse me, goes on to detail that there are... Lots of pilot error.

[00:25:38] Speaker 00:
Certainly there's pilot error, but the fact that there was pilot error at a moment as the report notes of an unenviable emergency does not undermine the agency's conclusion that the major mechanical failure was a precipitating event of that accident.

[00:25:52] Speaker 00:
And both of those were identified by number in the agency's rulemaking prior to the issuance of the final rule.

[00:26:00] Speaker 00:
They were publicly available at the time.

[00:26:02] Speaker 00:
And the comments that the agency received reflect that commenters had considered the accidents and were suggesting to the agency that they understood what was going on at the time.

[00:26:16] Speaker 00:
So there's nothing to suggest there was procedural impropriety in the rulemaking at issue hearing.

[00:26:21] Speaker 03:
What about the other argument that's made about the risk assessment itself?

[00:26:27] Speaker 00:
Certainly.

[00:26:28] Speaker 00:
So I would also point the court to order 80404A, which is in the Joint Appendix at 570, and it details essentially a standardization and some guidance for risk assessment by the FA across the various directories.

[00:26:43] Speaker 00:
Right.

[00:26:43] Speaker 00:
And what it says is risk assessment... I agree.

[00:26:46] Speaker 03:
It tells you what to do.

[00:26:47] Speaker 03:
The question is, did you do it?

[00:26:48] Speaker 03:
Yes, Your Honor.

[00:26:49] Speaker 03:
And if you did it, did you make that available so that interested persons could comment on it?

[00:26:57] Speaker 00:
Yes, Your Honor.

[00:26:58] Speaker 00:
The risk assessment that is required is one that, as I said, takes account of severity and likelihood of outcomes.

[00:27:05] Speaker 00:
There are risk analysis in the Joint Appendix at 18, 19, and 352 that satisfy that standard.

[00:27:12] Speaker 00:
They were made available on the rulemaking docket in June of 2015, significantly prior to the final rule and with opportunity for additional comment.

[00:27:24] Speaker 00:
I take petitioners to be suggesting that what is required is use of the risk matrix that's in the appendix to 80404A.

[00:27:35] Speaker 00:
That is not what the order requires.

[00:27:37] Speaker 00:
The order presents the risk matrix as a tool and says that it can be used, but other risk analyses may also be used.

[00:27:48] Speaker 00:
For example, an evaluation against the likelihood of a fatal outcome, which is the kind of risk analysis you see

[00:27:55] Speaker 00:
in the SAR risk analysis at 352 and in the challenge teams risk analysis at 1819.

[00:28:02] Speaker 03:
So just so I'm clear, that's what you meant on page 35 of your brief?

[00:28:07] Speaker 03:
Yes, sir.

[00:28:07] Speaker 03:
When you say that, well, you know what you said, but it's this risk matrix.

[00:28:17] Speaker 03:
that you're not required to use it, and you did not do so here.

[00:28:22] Speaker 00:
Correct.

[00:28:23] Speaker 00:
But the agency did explain that the determination in the rulemaking, that the determination was consistent with the risk matrix, and that the risk analysis it had

[00:28:39] Speaker 00:
undertaken was consistent with 8040.4A more generally, but it also noted, as I might point you to at JA32, that the agency had also relied on the extensive evidence in the record from service difficulty reports, mandatory service bulletin, various recommendations from FAA safety inspectors and the NTSB,

[00:29:00] Speaker 00:
that suggests that a significant problem was continuing to occur with these ECI cylinder assemblies and that some action was warranted.

[00:29:10] Speaker 00:
And if I might, to the point about how many accidents is necessary, no accidents are necessary in order to conclude that a part presenting a significant safety hazard merits an airworthiness directive, but in this instance,

[00:29:27] Speaker 00:
The agency relied on two fatal accidents, which the NTSB also noted resulted from the failure of these cylinders.

[00:29:35] Speaker 00:
And that is a significant amount and indicates a serious problem was ongoing with these cylinders.

[00:29:44] Speaker 00:
If the court has no further questions.

[00:29:46] Speaker 04:
I do have one question, and this is the certification process.

[00:29:49] Speaker 04:
Is that done at a general level?

[00:29:53] Speaker 04:
In other words, do you ever revoke the certification that a part has?

[00:29:59] Speaker 00:
So the certification process is as at the outset.

[00:30:03] Speaker 00:
An airworthiness directive is the remedial measure when it becomes clear that there's an ongoing safety hazard with various parts or... Does that automatically revoke the certification?

[00:30:15] Speaker 00:
no your honor it is also the case that a part in use that is in conflict with an airworthiness directive is prohibited so even though it doesn't revoke the airworthiness certificate it is a mechanism that the agency uses to ensure various parts come off the market or various parts

[00:30:38] Speaker 00:
which is one particular remedy that the agency might choose, or they're used in a certain manner.

[00:30:43] Speaker 00:
So an airworthiness directive might suggest various mitigating measures that pilots must use in order to continue using apart various other compliance mechanisms of that sort.

[00:30:54] Speaker 04:
OK, so is this true that this cylinder that's been certified can continue to be manufactured by other manufacturers?

[00:31:06] Speaker 04:
and it's only AEI or BCI and Aeromotive that have manufactured it in such a way that you've issued this Aeroworthiness Directive?

[00:31:17] Speaker 00:
Yes, the Aeroworthiness Directive applies only to parts with this particular serial number and part number that are manufactured by ECI.

[00:31:24] Speaker 00:
It does not apply more broadly to comparable parts.

[00:31:28] Speaker 01:
the more comparable parts might be made with a different process with respect to how the separation, the two parts of the cylinder are put together.

[00:31:36] Speaker 00:
Yes, Your Honor.

[00:31:37] Speaker 00:
And also, the changes made by ECI in 2009, which resulted in a significant reduction in the instance of failure, demonstrate that perhaps there was something in the manufacturing process that was changed along the way that contributed to the failure.

[00:31:55] Speaker 00:
Other parts, comparable parts, can continue to be manufactured without violating this airworthiness directive.

[00:32:03] Speaker 04:
OK.

[00:32:04] Speaker 04:
Any more questions?

[00:32:05] Speaker 04:
OK.

[00:32:05] Speaker 04:
Thank you.

[00:32:08] Speaker 04:
Does Ms.

[00:32:08] Speaker 04:
Ferguson have any time?

[00:32:11] Speaker 04:
Why don't you take a minute if you want to?

[00:32:20] Speaker 05:
The government refers to multiple risk assessments, and I just want to make clear that the two risk assessments they cite are that challenge team risk assessment, which is a few pages and depends entirely on these two fatal crashes.

[00:32:36] Speaker 05:
And the other is a one-page worksheet, which is based again on the same two fatal crashes.

[00:32:42] Speaker 05:
That's at JA 352.

[00:32:44] Speaker 05:
So there is no other risk assessment methodology in the record.

[00:32:49] Speaker 05:
There's no risk assessment methodology that's consistent with the rule 80-40 approach.

[00:32:56] Speaker 05:
In terms of whether the accident reports were publicly available, the Bahamas accident report was not publicly available until after the petition was filed.

[00:33:06] Speaker 05:
They provided the number of, you know, the incident number, but the report was not publicly available.

[00:33:14] Speaker 05:
And in terms of whether cylinder failures are inherently violent... Well, what does that mean?

[00:33:18] Speaker 03:
If you had asked for it, you could not have received it?

[00:33:23] Speaker 05:
I think we would have had to ask for it from the Bahamian government and see whether they would provide it.

[00:33:30] Speaker 05:
But the FAA cited it, right?

[00:33:33] Speaker 05:
But since these reports are the very thing that drove the two-risk analysis, it's just

[00:33:41] Speaker 05:
I think it's very irregular and not consistent with including on the record the basis for the decision to have not included those on the record.

[00:33:51] Speaker 05:
And I think it's because they're not supportive.

[00:33:54] Speaker 03:
In terms of whether cylinder failures are... It's different from our cases where the agency is hiding the information.

[00:34:01] Speaker 05:
Certainly the report wasn't available.

[00:34:05] Speaker 03:
In other words, they decided the report.

[00:34:07] Speaker 05:
But the public couldn't really fully evaluate whether those reports supported the FAA's position.

[00:34:14] Speaker 03:
But no evidence that a request was made to the FAA and it refused to make the report available.

[00:34:21] Speaker 05:
No, I don't, Your Honor.

[00:34:23] Speaker 05:
In any event, they don't support the ultimate conclusion reached.

[00:34:27] Speaker 05:
So again, I would ask support to follow the approach in DNF, Afonso, Realty, and Reverse and Remand.

[00:34:32] Speaker 05:
Thank you.