Before: SWYGERT,* Circuit Judge, United States Court of Appeals for the Seventh Circuit, ROBB and GINSBURG, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
GERMAN AIRLINES, SWISSAIR, SWISS AIR TRANSPORT
AVIATION ADMINISTRATION, RESPONDENT
AEREE ITALIANE-S.P.A., INTERVENOR
Nos. 79-1662, 79-1737 1981.CDC.243
Petitions for Review of Orders of the Federal Aviation administration.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBB
The petitioners in these consolidated actions are foreign airlines challenging "Special Federal Aviation Regulation No. 40" (SFAR 40) which was issued on June 6, 1979, by the Federal Aviation Administration in the aftermath of the catastrophic crash of a domestic DC-10 airliner on May 25, 1979. 44 Fed.Reg. 33396 (1979). SFAR 40 prohibited the operation of all Model DC-10 airplanes within the airspace of the United States, including those aircraft registered in other nations. The Administrator of the FAA terminated the effectiveness of SFAR 40 on July 13, 1979, five weeks after it was issued. The petitioners contend that the Administrator's actions in issuing SFAR 40 violated the provisions of several international agreements, and in particular Article 33 of the Convention on International Civil Aviation (the Chicago Convention) opened for signature, December 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295, T.I.A.S. No. 1591 (ratified by the United States August 9, 1946). The petitioners say this in turn constituted a violation of sections 1102 of the Federal Aviation Act of 1958. 49 U.S.C. § 1502 (1976). We agree. I. FACTUAL BACKGROUND
On the afternoon of May 25, 1979, American Airlines DC-10 Flight 191 crashed on take-off from Chicago's O'Hare International Airport, killing all 271 persons on board. Early reports indicated that the left wing pylon and the engine attached to it had separated from the wing as the aircraft took off. Later investigations showed that as the engine-pylon assembly tore loose from the wing, it severed hydraulic and electrical lines, which caused one set of wing slats to retract. The retraction of these slats, which govern slow speed lift, in turn caused asymmetrical lift of the aircraft. The crew responded by slowing the aircraft speed, which normally is the appropriate remedial measure for loss of engine power. However the crew did not know that the damage had raised the stall speed. Therefore, as the crew reduced the speed, the left wing stalled-lost the ability to sustain lift-and the airplane rolled and fell to the ground.
On May 28, 1979, in response to a recommendation of the National Transportation Safety Board, the FAA issued an Emergency Airworthiness Directive to all operators of U.S.-registered Model DC-10 aircraft, instructing them to inspect the pylon attach points on their aircraft. In keeping with agency practice, the FAA dispatched that directive to all foreign operators of DC-10 aircraft as well. The inspections undertaken in response to the May 28 directive revealed cracks in the pylon mounting assemblies of certain airplanes, SFAR 40 at 2, (J.A. 23) and other defects, including a failure of the spar web (a major structural component of the pylon) in a United Airlines DC-10 aircraft. (FAA Br. at 5, 10-11) Accordingly, the FAA issued another Emergency Airworthiness Directive on May 29, 1979, requiring more thorough inspections at more frequent intervals. In addition, the Administrator of the FAA grounded all domestic DC-10s, pending the more thorough investigations, and again notified foreign operators of the latest developments.
By June 2 the Safety Board had identified a relationship between a pattern of cracks in the pylons and a maintenance technique that violated the procedure recommended by McDonnell Douglas, the designer and manufacturer of the aircraft. McDonnell Douglas recommended removing the engine from the pylon before removal and reinstallation of the pylon to the wing attachment fittings. (J.A. 14) However, the Safety Board discovered that some maintenance personnel removed the pylon and the attached engine as a unit, using a forklift to transport the pylon-engine assembly away from the wing for inspection and repair. When reinstalling the pylon-engine assembly, the forklift operator had limited control over the precise placement of the pylon aft bulkhead into the wing structure. Vertical misalignment of even a fraction of an inch was thought to have caused the pylon flange to strike the forward lug of the wing fitting, which cracked the flange. The spar web cracking found on the United Airlines DC-10 however was apparently not caused by the improper maintenance technique. (FAA Br. at 10-11)
On the evening of June 5, 1979, the FAA confirmed that two American Airlines DC-10 aircraft also had cracked pylon mounts, which were not discovered in the first series of inspections. Initially the FAA concluded that these cracks were not induced by faulty maintenance, but upon review of reports of the maintenance practices the FAA determined that the cracks were maintenance-induced. (J.A. 50-55) At 2:20 A.M. on June 6, 1979, the Administrator of the FAA determined that the public safety required him to issue an Emergency Order of Suspension, which prohibited the operation of all U.S.-registered Model DC-10 aircraft by suspending the type certificate for all DC-10s and terminating the effectiveness of the individual airworthiness certificates for each U.S.-registered DC-10 aircraft. (J.A. 19) Later that day the Administrator issued SFAR 40, which expanded the scope of the earlier prohibition by prohibiting the operation within U.S. airspace of all foreign-registered DC-10 aircraft. Because of the apparent safety hazard, SFAR 40 went into effect on an emergency basis, without prior notice or hearings, in accordance with 5 U.S.C. § 553(b)(3)(1976) and 49 U.S.C. § 1485(a) (1976). Interested persons were given until August 3, 1981, to comment on the regulation.
D. The Response of Foreign Carriers to SFAR 40
After the Administrator suspended the DC-10 type certificate, a number of foreign governments, including those of the petitioners in the present case, provisionally suspended the individual airworthiness certificates for each of their DC-10 aircraft. During the week of June 11, 1979, European aviation authorities and European DC-10 operators conferred to determine whether and under what conditions the aircraft could be returned to service, consistent with the highest safety standards. At a June 15 meeting the conferees agreed on a special program of inspection and maintenance as a basis for each nation's aviation authorities to consider restoring national certificates of airworthiness to the DC-10s. (J.A. 63-68) The special inspection and maintenance program then was submitted to an Extraordinary Maintenance Review Board, which met on June 18 at Zurich. This meeting was attended by the representatives of 14 nations and 13 airlines, and the FAA sent three representatives as observers. (J.A. 69-84) The Board approved the comprehensive maintenance and inspection program as "an acceptable technical base for decision on the restoration of the DC-10's certificates of airworthiness, it being understood, that this decision will have to be taken individually by each European Civil Aviation Authority concerned." (J.A. 69) On June 19, 1979, the FAA had confirmed to the British Civil Aviation Authority that the DC-10 engine-pylon assembly was the only area of concern. (J.A. 83-84) Also on June 19, the British CAA issued an airworthiness directive imposing a detailed program of inspection and maintenance as a condition of permitting the return to service of British-registered DC-10 aircraft. (J.A. 85-88) At the same time the CAA withdrew the provisional suspension of DC-10 certificates of airworthiness. (J.A. 89-90) The other member states of the European Civil Aviation Conference took similar action. Notice of these actions was communicated to the FAA and the International Civil Aviation Organization.
On June 25, 1979, representatives of member states of the European Civil Aviation Conference met in Paris with a delegation from the United States and requested rescission of SFAR 40 as to those DC-10 aircraft for which certificates of airworthiness had been re-issued. (J.A. 96-97) In a statement issued June 25 the representatives of the European States took the position that
According to Article 33 of the Chicago Convention, certificates of airworthiness issued by the State of registry have to be recognized by the other Contracting States. There is no doubt that the requirements under which these certificates were issued are equal to or above the minimum standards established under the Chicago Convention.... No evidence has been presented by the United States authorities to the effect that the requirements ...