In midst of considerable negativity about delegation, some positive messages from 3 Senators
Inhofe and King propose civil liability immunity for Designees
Moran announces Advocacy for ODA
§301 LIMITATION OF LIABILITY FOR CERTAIN INDIVIDUALS DESIGNATED AS REPRESENTATIVES
Designation/Delegation have become “dirty words” in the virtual reality of Washington. One of the truism of this bastion of policy and politics is that Congress has a very short memory. Equally valid is the historic inability of the FAA to educate the Hill and the media about some of its safety mechanisms.
Anyone who has followed this issue, particularly the Organization Delegation Authorization (ODA), is likely concerned that this Congressionally authorized certification function may be terminated or limited by those same forgetful legislators. [NOTE: there is an easily implementable solution to this “perception problem”.]
…The FAA has been acting at the direction of Congress, amid pressure from industry players like Boeing to help them compete with foreign rivals by speeding up approvals of new aircraft. The agency maintains that it has used its cooperation with industry to make air travel safer….
[It should be noted that the Boeing ODA is currently being used to certificate the B-777X.]
In spite of this endorsement of the ODA, Members seem to have forgotten past votes by their legislative bodies and attacked this important safety tool:
Senator Blumenthal said at the hearing he plans to introduce legislation to end that practice.
“Call it delegation or shifting as you did, the fact is that the FAA decided to do safety on the cheap, which is neither cheap nor safe, and put the fox in charge of the hen house. That was true of the 737 Max 8. In its rush to produce that aircraft, because of competition from Airbus, critical safety features were disregarded.”
“We have relied on the industry more than we should rely on the industry to do the job that we should do to make sure the American public is safe,” Sen. Joe Manchin, D-West Virginia, a member of the Senate Subcommittee on Transportation said during the hearing, which was streamed online.
Subcommittee Chairwoman Sen. Susan Collins, R-Maine, raised questions about the FAA’s program of designating company employees to do inspections of aircraft as they are being developed and built. She cited a report in The New York Times that said FAA managers appeared to be more concerned about Boeing meeting production timelines than for the safety of the Max.
Today, Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-OR), and Chair of the Subcommittee on Aviation Rick Larsen (D-WA) sent a letter to the Inspector General of the U.S. Department of Transportation, Calvin L. Scovel III, requesting an investigation into the Federal Aviation Administration’s approach to certifying the Boeing 737 MAX.
Organization Designation Authorization (ODA). Evaluate if FAA’s reliance on designated ODA certification authority contributed to any of the factors you discover in your examination of the issues outlined above.
Those holding an ODA, DER, DAR, DME, DPE or other designations, having read these broadly worded Congressional criticisms, may fear that their authorities may have termination dates imposed.
Perhaps, being aware of those aviation safety professionals’ concerns, Sen. James Inhofe (R-Oklahoma) and Sen. Angus King (I-Maine) jointly introduced new legislation, the Promoting the Launch of Aviation’s Next Era (Plane) Act of 2019 (the Plane Act, S.2198). Much of the PLANE bill addresses pilots rights and GA airports, expand training options for air traffic control applicants, and ensure tax receipts from all aviation fuel sources are deposited in the aviation trust fund. Specifically, § 301 proposes to add a layer of civil liability immunity to the designees:
(a) IN GENERAL. —Any individual designated by the Administrator under subpart C of part 183 of title 14, Code of Federal Regulations, to act as a representative of the Administrator, including an aviation medical examiner, pilot examiner, or designated airworthiness representative, shall, when carrying out duties pursuant to that designation and without regard to the individual’s employer—
(1) be considered to be performing an activity necessary to safeguard a uniquely Federal interest;
(2) not be liable in a civil action for actions performed with reasonable care in connection with those duties.
(b) FRAUDULENT MISCONDUCT. —This section does not relieve an individual described in subsection (a) that causes harm to any person through intentional or fraudulent misconduct while carrying out duties pursuant to that subsection from any penalty applicable under any provision of law for that misconduct.
(c) ACTIVITY COVERED. —This section shall only apply to those individuals carrying out their duties within the United States or its territories.
Inhofe has had a remarkable track record of passing aviation bills and doing so exceptionally quickly; so, PLANE may actually be enacted. Add to that, PLANE has the support of 13 aviation stakeholder groups who sent a July 22 letter in support of the new bill.
More directly relevant to ODA, Sen. Moran, the junior Senator from a state known for its GA manufacturer companies, a Boeing site and several Boeing suppliers, spoke forcefully in support of Organization Designation Authorization. Here is AIN’s report:
As a number of lawmakers continue to question the FAA’s use of delegation in the wake of the Boeing 737 Max accidents, Sen. Jerry Moran (R-Kansas) is stressing the need to continue to support the organization designation authorization (ODA) program, vowing, “We do not intend to turn our back on that issue.”
Speaking yesterday at the Aero Club of Washington, D.C., Moran acknowledged the substantial number of conversations now surrounding manufacturing certification. “ODA remains an important component of the way…we are going to meet technological changes and the demands in the markets to advance innovation,” he said. “The FAA doesn’t have the capabilities to certify every new product. We have to rely on the private sector with FAA oversight to do this correctly.”
Moran, who is a senior member of both the Senate Appropriations and Commerce Committees, added that with any changes that might come as facts arise, “we will continue to be an advocate.” He added that, over the past 10 years, there has been an effort to expand delegations, not contract them. “That process is critical to the industry. We’d be in serious trouble if we were relying only on the FAA,” he said.
[NOTE: one Member of Congress has a memory!!!]
Moran later told AIN that there must be a considerable education effort on Capitol Hill on the importance of ODA. Concerning to him is the perception issue that is arising out of the public dialog surrounding the ODA issues.
Senator Moran is a master Hill mover of legislation; so, if need be, he should be effective. More importantly, the easiest legislative tactic is to defeat legislation. ODA and the other delegations are based on existing statutes. Opponents to this critical certification tool will have to pass a bill which reverses that authority and the Kansas senator should be able to block any such proposal.
The professionals holding such authorities from the FAA should take considerable solace from of S.2198 by Senators Inhofe and King plus Senator Moran’s announcement of advocacy is also good news.
 Part 183 includes: aviation medical examiners; pilot examiners; technical personnel examiners; designated aircraft maintenance inspectors; designated engineering representatives; designated manufacturing inspection representatives; and designated airworthiness representatives.
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