After long Max8 investigation, House ODA Reform Bill
Big Pluses more $$ for technical hires and more $$ for their training
Million Dollar Civil Penalties
The FAA’s Organization Designation Organization (ODA) is a much misunderstood regulatory machine. Congressional inquiries have concluded that this authority is the locus of why the B 737 Max8 crashed in two high profile, tragic catastrophes. Curiously, the Congress passed the original and then the expanded ODA statutory language.
Chairman Wicker (R-MS) soon after he introduced his FAA Accountability Enhancement Act delayed his Committee’s consideration of the bill. It appeared that he anticipated that the DeFazio-Graves house proposal (Aviation Certification and Accountability Act (ACRAA) will have more traction due to its bipartisan support.
The statute reflects a lot of research and thought about the ODA process in the abstract, As the cover picture suggests, this institution involves a lot of gears, governors, cross-switches, whistles and bells. The actual function has worked because of lubrication provided by highly dedicated public and private safety professionals. As the Max 8 case has shown, the system can fail horribly when the individual(s) lack that integrity. No remedial legislation can capture all such malfeasance. Undue burdens and penalties may stifle the human interactions that have made the ODA, with one salient action, a valuable tool.
The text includes a lot of new procedures, ODA employee qualifications, expert review and reports. Significant improvements may result for the ACRAA authorization of $27,000,000 new hires in the aircraft certification organization and $3,000,000 in new training funds for this staff. The bill massively increases the Civil Penalties to $1,000,000 (per individual event or applicable to a course of conduct) for failure to disclose certain specified actions.
ACRAA has 27 sections with three significant changes to the FAA’s existing powers:
Sec. 2. Safety Management Systems.
- The FAA has had this power and has been in the process of issuing rules for TC holders. ADDs: confidential employee reporting system las a code of ethics
Sec. 3. Expert Review of Organization Designation Authorizations for Transport Airplanes.
- The section-by-section summary specifically mentions Boeing, but the statute language (“each holder of an organization designation authorization for the design and production of transport airplanes…”) includes other ODAs for Part 25 entities and there are more than one
- Congress designated 13 very specific categories for the review panel members and the august body will have 22 members, an unwieldy number for a detailed review and given the contrary views of the named candidate categories, exceedingly unlikely that consensus can be reached.
- Further contributing to the possibility that the experts’ opinions will be based on thorough knowledge of TC’s diagnosis of the Section 3(a)(2) criteria, THE REPORT SHALL BE DELIVERED TO THE ADMINISTRATOR WITHIN 270 DAYS!!!
- The ACRAA provides for a Report plus as many dissenting opinions as may be filed.
- Access powers and proprietary information protections are specified.
- The DeFazio-Graves bill specifies that the Administrator may, based on the Report, “may limit, suspend, or terminate an organization designation authorization” and may also reinstate an ODA.
⇒ Existing 49 U.S. Code § 44702 and 14 CFR Part 183, Subpart J ALREADY EMPOWER THE ADMINISTRATOR TO DO THIS. WHY this unnecessary addition? Congressional foreshadowing???
- Section 3 also mandates that the Administrator report to Congress on results of this review
Sec. 4. Certification Oversight Staff.
- Perhaps the most significant proposal (NB: T&I may only authorize such funds; Appropriations only may fund this) amendment of the ACRAA—adding staff to the FAA offices responsible for overseeing the ODA holder
- Authorizes $27,000,000 for each of fiscal years 2021 through 2023 in new appropriations for the FAA to recruit and retain engineers, safety inspectors, human factors specialists, software and cybersecurity experts, and other qualified technical experts who perform duties related to the certification of aircraft, engines, and other components. Clarifies that nothing in this section 2 vests in any exclusive bargaining representative any management right of the FAA Administrator, and any action taken under this section is subject to the availability of appropriations
Sec. 5. Disclosure of Safety-Critical Information.
- Another dramatic change—authorizing a $1,000,000 civil penalty for failing to disclose “safety-critical information” [defined in 250 words in 5 subsections of 49USC] and other failure to communicate.
- Requires that any aircraft flight manual and flight crew operating manual contain a description of such a system and flight crew procedures for responding to a failure or aberrant operation of such system. Imposes up to a $1 million civil penalty for a violation of the disclosure requirements. Directs the FAA to revoke an airline transport pilot certificate held by an individual who fails to disclose such safety-critical information on behalf of a manufacturer. Repeals unused FAA design and production organization certification authorities.
- $1,000,000 in civil penalties can be assessed for failure to communicate
- NEWLY DISCOVERED INFORMATION
- AIRCRAFT SYSTEM DEVELOPMENT CHANGES.
- FLIGHT MANUALS
Sec. 6. Periodic Reviews of Organization Designation Authorizations.
- Every 7 years (as in the 7-year itch?) as opposed to at the end of a specific designation? With a specified period for the next review, would the ODA spend a lot of Year 6 cleaning things up?
Sec. 7. Limitations on Delegation.
- Codifies an existing FAA policy that prohibits, with some exceptions, FAA delegation to an aircraft manufacturer the ability to certify on behalf of the agency the design of a “novel or unusual design feature” that results in a major change to an aircraft type design. The FAA may delegate such a matter when the FAA Administrator determines it is a routine task, or when, during the course of the certification process, the Administrator determines it no longer relates to a novel or unusual design feature. This section also prohibits FAA delegation of a certification function to a manufacturer solely because the agency lacks the qualified personnel or expertise to handle the function internally.
- $27,000,000 not enough?
- Beginning one year after the date of enactment of this Act, requires the FAA Administrator to approve each new individual selected by an ODA holder engaged in the design of an aircraft, aircraft engine, propeller, or appliance before they become an authorized representative (or ODA unit member), who are employees of a manufacturer granted special permission to act on the FAA’s behalf in validating compliance of aircraft systems and designs with FAA requirements [existing Part 183 Subpart J requires that the ODA maintain a manual, available to the FAA, which lists the unit’s employees’ names.].
- Requires new ODA unit members to meet qualifications issued by the Administrator, such as the knowledge, technical proficiency, and moral character of such individual. Authorizes the FAA Administrator to rescind an approval of an approved individual to serve as an ODA unit member at any time, for any reason.
- Notwithstanding the applicability of this section to new ODA unit members, directs the FAA to complete a review of each current Boeing ODA unit member to ensure each individual meets the agency’s minimum qualifications ( 200 words in 6 categories) issued under this section.
- Authorizes $3,000,000 for each of fiscal years 2021 through 2023 in new appropriations for the FAA to ensure adequate staffing and resources necessary to undertake the work required under this section.
- Imposes a civil penalty for any individual employed by an ODA holder who interferes with (e.g., harasses, berates, or threatens) an ODA unit member’s performance of authorized functions on behalf of the FAA and requires all ODA unit members to promptly report any cases of interference experienced or witnessed at a company.
- Creates a process for lateral communications so that FAA employees with certification responsibilities may directly contact non-managerial employees of an aircraft manufacturer for consultation regarding the certification of aircraft design, production, and other matters.
Leaders of the House Transportation Committee plan to introduce legislation Tuesday they say would strengthen federal safety oversight of Boeing following two deadly crashes of the company’s 737 Max jet.
The bill, which has bipartisan support, would give the Federal Aviation Administration a say in which Boeing employees carry out safety oversight work on the agency’s behalf, rebalancing a system that reviews of the crashes have blamed for the FAA missing safety problems with the jets.
The legislation also would provide the FAA an extra $30 million a year to beef up its own engineering and technical teams and calls for some two dozen other changes to the nation’s aviation safety regime.
Rep. Peter A. DeFazio (D-Ore.), the Transportation Committee’s chairman, said an investigation by his staff into the crashes had left him “alarmed.”
“But being alarmed and outraged is not where this story should end,” DeFazio said in a statement. “With the comprehensive legislation we are unveiling today, I believe history can also show this was the moment Congress stepped up to meaningfully address the gaps in the regulatory system for certifying aircraft and adopt critical reforms that will improve public safety and ensure accountability at all levels going forward.”
The committee Republicans’ support for the bill is something of a surprise because they have previously questioned Democrats’ focus on making changes to the FAA’s safety oversight system and did not take part in the committee’s investigation.
But Rep. Sam Graves (Mo.), the committee’s top Republican, said other expert reviews of the crashes highlighted problems with how the FAA conducts approvals for new planes that ought to be addressed.
“These thorough, nonpartisan, expert reviews provided recommendations that formulated the basis of improvements we are seeking through this legislation,” Graves said in a statement. “I believe this bill will improve safety and strengthen America’s competitiveness in the aerospace industry while ensuring that the United States and the FAA continue to be the global gold standard in aviation.”
Earlier this month, the committee Democrats released the findings of their 18-month investigation into the crashes. They concluded that Boeing missed opportunities to improve the safety of the automated system that was implicated in the crashes and which its own employees had raised concerns about. The FAA, meanwhile, failed to effectively oversee the company and ensure that the Max was safe, the investigation found.
FAA officials have said they are pursuing changes internally, but a survey of employees in the agency’s safety branch conducted between October and February found many still faulted its dealings with big companies like Boeing. One compared meetings with the company as being like “showing up to a knife fight with Nerf weapons.”
The House legislation aims to provide a remedy.
It would create an independent panel to review manufacturers’ safety approval operations and require the FAA to review them on an ongoing basis. The FAA administrator would be given the power to approve individual company employees assigned to those operations and to remove them for any reason.
The bill also would ban other Boeing employees from interfering with the work of employees assigned to the safety operation and allow for communication between front-line FAA and Boeing engineers.
A separate section in the bill would create a formal appeal system for companies to question safety decisions the FAA makes in the approval process and prohibit agency officials and company executives from communicating about the dispute outside the process.
The legislation also calls for “cooling off periods” for people moving between private companies and the FAA, restricting new FAA employees from overseeing their former employer for a year.
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