FAA ODA Delegation Under Congressional Scrutiny by Mike Borfitz

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FAA ODA Delegation Under Congressional Scrutiny Senator Wicker’s Organization Delegation Authorization bill Analysis and Recommendations
From an experienced, knowledgeable ODA

From a Senate press release: “On June 17, 2020, the (Senate) Commerce Committee will hold a hearing on the FAA’s oversight of its certification processes. FAA Administrator Steve Dickson will testify about issues associated with the design, development, certification, and operation of the Boeing 737 MAX following international accidents in the past two years.”

On June 2, Senator Sen. Roger Wicker (R-Miss) introduced the Aircraft Safety Improvement Act of 2020, which mentions Organization Designation Authorization (ODA) 17 times in the span of 12 pages. The proposed bill suggests a “best practices review” be conducted, to include:

• “At a minimum, the best practices shall address preventing and deterring instances of undue pressure on or by an ODA unit member, within an ODA unit, or by an ODA holder, or instances of perceived regulatory coziness or other failures to maintain independence between the FAA and an ODA holder or ODA unit member.” In a March 2020, the House Committee on Transportation and Infrastructure published their preliminary findings. In that report, undue pressure was recognized as a significant problem inside Boeing;

• “A Boeing internal survey conducted in 2016 at the height of the 737 MAX’s certification activities, and provided to the Committee from a whistleblower, found that 39 percent of Boeing employees that responded perceived “undue pressure” and 29 percent were concerned about consequences if they reported potential undue pressure, painting a disturbing picture of cultural issues at Boeing that can undermine safety and oversight.”

On March 20, 2019, Sen. Richard Blumenthal tweeted “DOT IG report must investigate the FAA’s decision to leave the fox guarding the hen house. FAA outsourced safety—delegating certification of airworthiness to Boeing. Time to end this system of safety on the cheap that poses significant security & oversight risks.”

These facts and perceptions point to a very high likelihood 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 manufacturers and the FAA alike, and sweeping changes are not out of the question. It is entirely possible, however, that the ODA system can be improved upon almost overnight, by making a few fundamental changes and without promulgating new laws or regulations.

First, a few facts on the regulatory environment and FAA/industry accountability;

° In a negligence lawsuit against the FAA, the Supreme Court decided for the FAA in 1984, and stated in their decision; “Under this certification process, the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator, while the FAA retains responsibility for policing compliance.” All manufacturers must be conscious that THEY are ultimately accountable for the safety and airworthiness of their products.
• The FAA organization accountable for ODA oversight, Aircraft Certification, is responsible for the design, production and continued airworthiness of every certificated product in the United States, including imported aircraft and parts, which is their first priority. That organization is comprised of roughly 1200 employees. Best guess is that 800 inspectors and engineers, or 2/3 of the force, are available to interface with industry on a regular basis.

• According to the US Bureau of Labor Statistics (BLS), there are roughly 500,000 people employed in “Aerospace Product and Parts Manufacturing”.

In light of those numbers, it is easy to conclude that the FAA is vastly outnumbered by industry, and it lends weight to the Supreme Court statement that “. . . the FAA accomplishes its monitoring function by means of a “spot-check” program designed to encourage manufacturers and operators to comply fully with minimum safety requirements.” The FAA most certainly cannot be “the cop on the block”, plain and simple. So the question arises; How can we help the FAA do their job while minimizing the potential for undue pressure and the temptation for industry to “cut corners”?

Is There a Solution?

Delegation depends on two vital characteristics for the certificate holder; performance and integrity. Performance is easy to understand, and integrity relates to the manufacturer’s ability and willingness to identify errors, openly share their findings with the FAA, take corrective actions and track the results, then → back to performance. Combined with strong leadership, effective oversight and clear roles and responsibilities, an ODA can set boundaries and hold the line against undue pressure, and the FAA can help by using tools that are already available to them.

The ODA system might be realigned as follows:

• First and foremost, the FAA might implement a risk-based assessment of each manufacturer, their certification processes, and the scope and complexity of each new project. They already have similar tools in use, such as the Transport Airplane Risk Assessment Methodology (TARAM), which is primarily intended for monitoring Continued Operational Safety (COS) of in-service airplane fleets. The thought process used to develop TARAM might easily be applied to new certification programs.

• Independent, third party ODA’s can be contracted to manufacturers, especially the larger manufacturers like Boeing. These ODA’s exist today, under current regulations. The third party ODA unit members, the individuals who make findings of compliance for the FAA, will be shielded from direct management (applicant) oversight. This ODA concept will address one requirement of the proposed Senate bill; to form a Panel that will “ . . . identify ways to improve communications between an ODA unit, ODA unit members and the FAA engineers and inspectors, in order to enable direct communication of technical concerns that arise during a certification project without fear of reprisal to the ODA unit or ODA unit member . . .”

• ODA’s that are contracted to approve the larger, more complex designs might have FAA employees “embedded” as needed, depending on their risk assessment and that manufacturer’s history. In any case, frequent FAA visits will strengthen relationships and build trust between ODA and FAA, which are essential elements in the development of clear communications.

• The Senate bill also attempts to address “perceived regulatory coziness”, which a third party ODA will mitigate by being inserted between manufacturer and the FAA, thus acting as a “referee” of sorts.

These suggestions, if implemented, can all be incorporated almost overnight, because the current regulatory and delegation structures are currently in place. A third party ODA will, in essence, be paid by the manufacturer but work for the FAA, who would be responsible for evaluating ODA performance and be available in an advisory capacity for questions related to certification processes and regulatory interpretation.

SCOTUS, US vs Varig: https://caselaw.findlaw.com/us-supreme-court/467/797.html

BLS aerospace manufacturing: https://www.bls.gov/oes/current/naics4_336400.htm
Senate bill: https://www.commerce.senate.gov/services/files/ADD5F354-94D3-4768-A821-D6A13C7C9550

Preliminary 737 Max report, House of Representatives: https://transportation.house.gov/imo/media/doc/TI%20Preliminary%20Investigative%20Findings%20Boeing%20737%20MAX%20March%202020.pdf

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