FAA Administrator Dickson’s Senate Testimony Can Change Everything
But is it necessary?
U.S. Sen. Roger Wicker, R-Miss., chairman of the Senate Committee on Commerce, Science, and Transportation, will convene a hearing titled, “Examining the Federal Aviation Administration’s Oversight of Aircraft Certification,” at 10:00 a.m. on Wednesday, June 17, 2020. The hearing will provide an opportunity to review issues associated with the design, development, certification, and operation of the Boeing 737 MAX following two international accidents in the past two years. The hearing will also consider potential opportunities to reform the certification process for transport-category aircraft.
The FAA Administrator Stephen Dickson’s testimony at this Senate Commerce Committee hearing, provided a basis for the legislative issues pending. Congress is considering how if the statutory powers in aircraft certification, if anything, should be changed. It is timely to remind us that the FAA actually has many tools in hand today that could correct many of the issues that have been revealed since the tragedies of Lion Air and Ethiopian Airlines last year. It is entirely appropriate to study what is known so far about the FAA delegation system vs the mistakes made by Boeing as a Type Certificate holder.
One question must be dealt with: Is there truly a systemic problem, or did Boeing push their own delegation too far?
The honest answer may be a bit of both, but we must remind ourselves that the ultimate accountability for safe designs resides with the manufacturer. There are sound reasons why the final responsibility lies with the Type Certificate applicant.
First, the FAA can (under the Act, the FAA MAY inspect everything, but as a practical matter, it “can”) only “spot check” the manufacturer’s designs. For example, the Seattle FAA Aircraft Certification Office (ACO), the office that is responsible for Boeing design oversight, may be outnumbered 50:1 or more by Boeing engineers.
Further, this same FAA office and its cadre of engineers are responsible
- For the TC of every Transport Category certificate issued by the FAA, for aircraft operating in the US and around the globe. This includes supervision of the airworthiness of airplanes certificated by other CAAs.
- “Continued Operational Safety” which includes:
- Work with the manufacturers to mandate corrective action through airworthiness directives (AD),
- Revise regulations/policy, or
- Issue new regulations/policy.
One way in which the FAA attempts to meet these duties, given Congress’s limited budget for staffing and with statutory ODA authority recently revised is to rely on the Boeing Organizational Delegation Authorization (ODA). After a thorough and detailed examination of any ODA application, the FAA grants very precise boundaries of the organization’s scope of authority, the specific personnel designated to work on the project and the procedures to be followed. Based on that process the Boeing FAA delegated organization, was and is responsible for acting within the company, but separate from the internal engineering staff to act on behalf of the Administrator.
Another item worth mentioning is that the FAA, or even their designees, can only approve what is presented to them by the applicant. The Boeing ODA is truly a “Representative of the Administrator” and must conduct their business on behalf of the FAA. It is incumbent on them to flag issues for the FAA supervising unit.
A March 17, 2019 Seattle Times story by Mr. Dominic Gates, confirmed the following points, among others. The Boeing Company, as applicant, quietly revised their MCAS (Maneuvering Characteristics Augmentation System) safety analysis and:
- “Assessed a failure of the system as one level below “catastrophic.” But even that “hazardous” danger level should have precluded activation of the system based on input from a single sensor — and yet that’s how it was designed.”And
- “Understated the power of the new flight control system, which was designed to swivel the horizontal tail to push the nose of the plane down to avert a stall. When the planes later entered service, MCAS was capable of moving the tail more than four times farther than was stated in the initial safety analysis document.”
The question must be asked:
Were either the Boeing ODA or the FAA aware of this re-assessment and design change?
If the safety assessment had remained at the “catastrophic” level, it almost certainly would have drawn more attention from the ODA and the FAA. If Boeing had “raised the flag” and informed the ODA or FAA that the MCAS was made more powerful, would a new safety analysis have been required? According to reports, the answer is YES. The FAA (or their designees) can only approve what they are shown. This is a critical factor in any examination of a certification program.
At this point we must ask: Regardless of the type of delegation, is it possible for a delegated organization or even the FAA to miss such a change to a safety analysis if they are not informed? The answer is a deeply serious YES. A large airplane like the 737 is a highly complex machine, and the huge number of reports, tests and analyses produced in a certification program make it exceedingly difficult for a regulator or designee to catch a change they’re not informed of. You can only regulate what is shown.
Today, we are faced with a strident call to “strengthen FAA oversight of Boeing designs”. The Senate is considering a bill that will “ . . . tighten controls on how federal aviation safety regulators oversee and approve Boeing’s design of new jets . . . ” (per Mr Gates) The question that must be answered, however, is;
MUST THERE BE LEGISLATION, DRIVEN BY BOEING’S SINGULAR FAILURE, THAT WILL ENCUMBER THE ENTIRE INDUSTRY?
The answer is NO. The FAA has been successfully delegating for nearly 100 years, and ODA-type delegation harkens back to the 1950’s. Further, the FAA has many surveillance and enforcement tools that be surgically applied to ANY delegated person or organization. If Boeing is responsible for 2 major accidents and 346 deaths, fix Boeing, not the entire industry.
The ODA concept is not new. It’s well over 60 years old, and it works.
Delegation Option Authorization (DOA) was codified in 1956, over 60 years ago although it was limited to small aircraft, engines and propellers. Despite that limitation and the unfortunate acronym, the DOA was an effective organizational delegation for aircraft manufacturers that ultimately became today’s ODA.
The deadly consequences of Boeing’s failure have led to the ODA system being painted with a broad and simplistic fox-henhouse brush, but the system is not broken. The current political environment and public perceptions, however, point to a very high probability that the ODA system will be subjected to a significant level of attention in Administrator Dickson’s testimony and in legislative actions to come.
The FAA Delegation Problem: Who Is Accountable?
This leads naturally to a timely discussion of the value and risks of the ODA system to ALL manufacturers and the FAA alike, and sweeping changes are not out of the question. We must face the potential that Boeing’s “one bad apple” behavior has exposed a systemic flaw in the delegation structure, but we must NOT toss out the good with the bad. Any examination of the ODA system should consider the failures and successes and mitigate the failures in a way that will not diminish the power inherent in delegation.
It is entirely possible that the ODA system, and specifically Boeing oversight, can be improved upon almost overnight, by making a few fundamental changes in Boeing oversight, within the existing delegation system, and without promulgating new laws or regulations. Here’s how:
From the Gates article: “The draft bill would restructure the organization within Boeing of company engineers who work on behalf of the FAA and are tasked with testing and approving the design of a new airplane . . . . Those engineers today are appointed by Boeing.“.
- Fact: There is no need for new regulations for this to occur. Neither 14 CFR Part 183 “Representatives of the Administrator” nor FAA Order 8100.15 “ODA Procedures” require the FAA to relinquish control of selections to the ODA certificate holder. The only issue is one of FAA resources that are available for oversight, but the FAA could step in today and snatch that away from Boeing “for cause”, without affecting other designees.
Again, from the article: “Another item addressed in the bill is that current law allows the FAA to designate certain companies as able to completely self-certify their own aircraft designs and production processes, sometimes referred to as “delegation on steroids.”
- Fact: The FAA Reauthorization Act of 2012, Section 303 stated, in part “Beginning January 1, 2013, the Administrator may issue a certificate to a design organization, production organization, or design and production organization to authorize the organization to certify compliance of aircraft, aircraft engines, propellers, and appliances with the requirements and minimum standards prescribed under section 44701(a). An organization holding a certificate issued under this subsection shall be known as a certified design and production organization (in this subsection referred to as a “CDPO”.
- Fact: Since 2012, no manufacturers have been authorized to become CDPO’s. In fact, this was widely viewed as a goal that would not be reached for many years because of the sweeping changes required in both manufacturer’s processes and FAA oversight.
The article goes on to state: “The FAA approved the MAX as a derivative of the original 737 that was certified 50 years earlier, a curtailed certification process that meant it didn’t have to meet all the latest safety regulations.“
- Fact: 14 CFR Part 21.101 “Designation of Applicable Regulations” states, in part “An applicant for a change to a type certificate must show that the change and areas affected by the change comply with the airworthiness requirements applicable to the category of the product in effect on the date of the application. . . “. Although this has a variety of exceptions, the regulation has worked relatively well. The issue at hand is not the regulation, it is an issue of an applicant’s integrity.
In conclusion, all the evidence we’ve seen so far implies that Boeing pushed their delegation privileges too far, and may very well have hidden certain facts from their own ODA. The FAA is not completely off the hook for their oversight but the primary accountability resides with Boeing, as decided by SCOTUS nearly 40 years ago (See link below).
There is no good reason to write new laws that will affect the entire industry simply because our own 900 pound gorilla wrecked the place. This is written with full knowledge that public confidence in the FAA and our entire industry has been shaken, Congress certainly feels the need to act. But please, Congress should not toss out the baby with the bathwater. Please.
This was written in response to a Seattle Times story, June 12, 2020, written by Mr Dominic Gates:
- “Senate proposal would strengthen FAA oversight of Boeing plane designs. Families of victims in 737 MAX crashes weigh in.”
There is also reference above to an earlier Seattle Times story, March 17, 2019, also written by Dominic Gates:
- “Flawed analysis, failed oversight: How Boeing, FAA certified the suspect 737 MAX flight control system”
Supreme Court Decision: United States v. Varig Airlines
 For more background on ODA, see FAA ODA Delegation Under Congressional Scrutiny By Mike Borfitz; Now Is The Time For All Aviation To Come To The Aid Of ODA; New York Times Article- Is It Time To Reconsider The Boeing ODA?; A Proposal To Respond To The ODA Perception Mess—B737 Max8–2019 #6; UL As An Historical Model For Replacing ODA If Congress Stops That Authority-Comments On The Negroni Commentary
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