If Boeing ODA members applied “Undue Pressure”
49 USC § 44702(d), 14 CFR Part 183 and Order 8100.15B require integrity
Chapter 7. Suspension appropriate?
By Alan Levin
“U.S. aviation regulators have begun a formal investigation of Boeing Co. after company employees alleged they faced duress that threatened their independence while assessing aircraft designs on behalf of the government.
The Federal Aviation Administration’s compliance action, which focuses on a controversial program known as Organization Designation Authorization that grants planemakers authority to sign off on designs for the agency, is looking at whether workers faced “undue pressure,” according to recently released government documents.
The FAA has sent Boeing two letters of investigation, which can lead to enforcement actions including fines and other penalties, according to a little-noticed section of a watchdog report on how Boeing and the FAA approved the 737 Max, which was grounded last year after its second fatal crash.
The report by the Transportation Department Inspector General, which found that Boeing had withheld critical information on the Max during its certification, said the FAA has spurned the company’s attempts to settle the investigation. The FAA’s investigation has so far stopped short of an enforcement case.
Five Boeing engineers raised the allegations. One of the five had reported instances of undue pressure through the formal Boeing process of resolution, the IG said, citing FAA information.
In the months that followed, Boeing tried several times to resolve the issue by what is known as a corrective action plan, in which the company would promise to improve its processes and prevent such violations in the future.
“FAA did not accept Boeing’s response to this compliance action,” the IG said in the report last week. “FAA also issued two separate letters of investigation in June 2019 and March 2020 against Boeing, related to potential undue pressure of unit members.”
Such letters of investigation serve notice on a company that FAA believes it has potentially violated regulations and lays out the case. They also would allow Boeing to respond to the allegations, possibly arguing that it hadn’t committed a violation.
The FAA didn’t accept Boeing’s response to its initial June 2019 letter, according to the IG. The agency “is currently evaluating that letter of investigation and the formal compliance action together,” according to the report.
The FAA is still waiting for Boeing to respond to the more recent letter it sent in March.
The FAA doesn’t comment on possible ongoing investigations, said agency spokesman Lynn Lunsford.
“We take all allegations of undue pressure very seriously, investigate them carefully, impose corrective action where warranted, and work to resolve them cooperatively with the FAA,” Boeing spokesman Bradley Akubuiro said in an email.
A series of the company’s own internal audits of the designee program in 2018 and 2019 showed that significant numbers of employees were concerned about pressure, but found no FAA violations related to the issue, according to the IG report.
The FAA investigation has continued in spite of the company’s internal attempts to limit pressure on its employees. Boeing announced last September it was restructuring so that engineers serving as designees for the FAA wouldn’t report to managers overseeing aircraft programs.
The watchdog’s report offers new details into possible enforcement actions being contemplated by the FAA against the U.S.’s largest aircraft manufacturer.
The agency had previously said that Boeing’s decision not to fix a malfunctioning warning light on the Max was a violation of FAA regulations. After a 2015 agreement to settle 13 separate investigations against Boeing, the company agreed to pay $12 million in the case but could be liable for an additional $24 million if FAA concludes violations continued.
Congress had in recent decades steadily expanded the authority of programs that designate partial authority to the aviation industry in an attempt to streamline approvals and make U.S. companies more competitive. Company representatives are supposed to follow aviation regulations and remain independent. The ODA at Boeing is made up of almost 1,500 employees, though they work in the unit part-time.
The IG, which has previously raised concerns about oversight of ODA programs, is working on a new report specifically about how it functioned during the 737 Max’s certification. The oversight agency didn’t make recommendations in its recent report, saying it may do so in the future.
The FAA announced in May that it is writing new regulations specifically to address the potential for undue pressure to be placed on company employees acting in the agency’s behalf.
— With assistance by Julie Johnsson”
The Office of Inspector General attempts to exercise oversight over all the DOT modes and to pass judgment on the technical challenges posed by the FAA’s competences–the aeronautical/computer/human factors/flight engineering subject matter to mention but two–stretch the OIG staff resources. The criticisms repeated in the above article are independently confirmed by the Joint Authorities Technical Review (JATR), composed of aircraft certification experts drawn from around the world.
After JATR scrutinized the B-737 Max, the panel found signs of undue pressures on Boeing ODA engineering unit members (E-UMs) performing certification activities on the B737 MAX program, which further erodes the level of assurance in this system of delegation. Based on that expert opinion, JATR recommended the FAA should review the Boeing ODA work environment and manual to ensure the Boeing ODA E-UMs are working without any undue pressure when they are making decisions on behalf of the FAA.
There have been questions asked about the continuing validity of the Boeing ODA based on the extensive revelations already made known:
ODA is statutorily defined by 49 USC § 44702(d), codified at 14 CFR Part 183 and further outlined by Order 8100.15B – Organization Designation Authorization Procedures, Including Change 3 (ODA Order). The ODA is not a right, rather it is a privilege granted for the administration of the FAA’s duties as this quote from the Order makes clear (¶ 2.):
a. The organization’s FAA workload is large enough to warrant approval;
b. The FAA will benefit from granting the ODA; and
c. The FAA has the resources available to manage the authorization.
The text (319 pages) starts with establishing and reiterating the duties of the ODA to the Administrator. The premise is that the delegatee is relied upon to act with the same level of safety as the FAA would. The following quotes enumerate and repeat this responsibility:
Chapter 3. Qualifications, Responsibilities, and Authority
3-4. ODA Holder Qualifications.
- Integrity. The applicant’s management, its ODA administrator, and the proposed ODA unit members must possess demonstrated integrity in their experience with the FAA.
- Organizational Model. One key to the success of the ODA system is that the ODA holder’s executive management fully supports the ODA unit. The ODA unit also must be free to do its duties.
(1) The ODA administrator must ensure that the organization performs all authorized functions in accordance with the regulations and applicable FAA policy…The ODA administrator must also ensure that the organization always complies with its ODA procedures manual. The ODA administrator must be in a position that provides authority to act in the FAA’s interest.
(2) Each ODA unit member must be in a position that provides enough authority and time to perform duties without pressure or influence from other parts of the organization.
3-5. ODA Staff Qualifications. Qualifications for the ODA administrator and ODA unit are as follows:
- ODA Administrator.
(3) Demonstrated sound judgment and integrity.
3-9. Procedures Manual.
(4) Preface and introduction, including procedures for FAA and ODA holder communications. The ODA holder’s procedures for communications must address the types of communications that are appropriate between the ODA holder/unit and the OMT.
These are a few of many requirements of the ODA, its administrator, the approved staff and the approved procedures to meet its safety duties under Part 158.The information publicly available, not yet sanctified as “evidence,” seem to indicate a failure of the Boeing ODA to meet its vow of INTEGRITY.
The ODA Manual Chapter 7. Suspension and Termination of an ODA may well be the next step. There it is stated:
7-2. Cause for Suspension or Termination of ODA. The following are the primary reasons for the FAA to suspend or terminate an ODA. This list is not exhaustive, and the FAA may find other reasons to suspend or terminate an ODA.
- Improper Performance. When the ODA holder fails to properly perform the functions granted in the authorization or fails to perform the administrative responsibilities associated with the authorization. This includes, but is not limited to:
(1) Lack of Care or Judgment. When the ODA holder does not exercise the care or judgement required to properly exercise the ODA, resulting in authorized functions being performed unsatisfactorily. 9/6/16 8100.15B CHG 2 7-2
(2) Misconduct. Evidence of misconduct, including wrongful intent, falsification, collusion, conflict of interest, compromise, or other negligent acts that might jeopardize the proper performance of the authorized functions.
The allegations made, if true, would appear to justify this action.
After issuing a notice under Chapter 7, Boeing has the burden to identify those whose integrity is questioned by the FAA and then remedy. Seeking either of the remedies allowed under Chapter 7 may shake up Boeing’s internal poor Safety Culture and reorganize its ODA unit. Anyone, who as a member of the delegated authority exercised or attempted to exercise undue pressure, should no longer hold that regulatory privilege.
One might argue that the Boeing 737 Max 8 unit ought to be terminated, but that may not be realistic given the imbalance of qualified staff at Boeing compared to the FAA. The appropriate sanction should be suspension and then Boeing populating its B-737 Max 8 with those who did not attempt to pressure the FAA’s OMT. A fresh start may be the most direct, best designed enhancement of its Safety Culture.
Share this article: