Opinion: A Solution For Boeing, FAA and DOJ Troubles?
AUTHOR :Mike Borfitz, CEO, Kilroy Aviation LLC, July 15, 2024 (R1), Member of JDA Solutions team
Executive Summary
The Boeing Company has entered a guilty plea in federal court to a felony charge of fraud after
failing to effect necessary, significant changes to their safety culture even after two 737 MAX
accidents that claimed 346 lives over 5 years ago and an inflight door plug departure from a
new 737 MAX early this year. The Department of Justice (DoJ) suggested a 3-year independent
monitor to oversee Boeing’s efforts to ensure promised changes are actually implemented.
Additionally, more than 2 years after the fatal accidents the Federal Aviation Administration
(FAA) was compelled to chastise the Boeing Organization Designation Authorization (ODA) Lead
Administrator for a significant lapse of integrity in its oversight of the Boeing 777-9 type
certification program. In that case the ODA failed to act as a representative of the FAA
Administrator, which is a fundamental principle of any organizational or personal delegation.
Rather, the ODA ignored or failed to understand that core principle when they represented
Boeing to the FAA rather than represent the FAA to Boeing.
There is an alternative solution: A third-party ODA funded by Boeing, physically separate from
Boeing and with a small number of embedded FAA engineers and inspectors who will ensure
ODA autonomy, relieve the FAAs Boeing oversight burden, provide a long-term solution, restore
public confidence in Boeing and the FAA and finally, help satisfy the DoJ requirement to correct
felonious behavior.
This approach will benefit DoJ, DoT, FAA, the flying public and quite possibly, even Boeing.
Background
It’s safe to assume everyone in our small/vast aviation world is familiar with Boeing’s problems
related to airplane design, production and FAA delegation. Recent news and Senate hearings
give one the impression that Boeing is still struggling to pull out of a steep corporate dive driven
by whistleblowers, major production problems and legal onslaughts from both criminal and civil
sectors. And all this is happening a full 5+ years after the tragic loss of 346 passengers and crew
in back-to-back 737 MAX accidents of Lion Air Flight 610 on October 29, 2018 and Ethiopian
Airlines Flight 302 on March 10, 2019.
Recently, federal prosecutors recommended to the Department of Justice that Boeing should be
criminally prosecuted “…over Boeing’s alleged violation of a 2021 deferred prosecution
agreement.
“ Boeing negotiated a deal, pleaded guilty and the giant corporation is now a
convicted felon. On June 18, FAA Administrator Mike Whitaker told the Senate Commerce Committee “Let me also acknowledge the FAA should have had much better visibility into what was happening at Boeing before January
.” when a door plug departed a 737 Max airplane inflight. On the same day, Boeing CEO David Calhoun was wire-brushed by the U.S. Senate Permanent
Subcommittee on Investigations. Senator Josh Hawley declared “You’re strip-mining it. You’re
strip-mining Boeing.” and “You’re focused on exactly what you were hired to do, which is tha
you’re cutting corners. You are eliminating safety procedures. You are sticking it to your
employees. You are cutting back jobs because you’re trying to squeeze every piece of profit you
can out of this company,” Paul Cassell, attorney for the surviving families, recently stated in a letter to the Justice Department that Boeing should be fined $24 billion for what he called “…the deadliest corporate crime in U.S. history. ” and in 2022 a woman who lost her daughter declared “We have not been consulted. We ask to be heard. ” when she was informed about a $2.4 billion
settlement with DOJ for fraud rather than criminal prosecution for manslaughter.
With one exception this is all recent news. In our industry of speedy aircraft, however,
regulatory, legislative and legal efforts can be frustratingly slow and this is no exception. Still,
some very newsworthy events have occurred for which Boeing simply cannot be excused,
especially after 5+ years.
In August of 2021 I was invited to publish an opinion piece in our trade magazine, Aviation
Week & Space Technology (aka AvWeek), that presented a possible solution to what appeared
to be a problem with the Boeing-held ODA (see attachment 1). An ODA is an FAA delegated
1 https://www.cbsnews.com/news/boeing-criminal-charges-recommendation/
2 https://www.cnn.com/2024/06/13/business/faa-boeing-oversight-too-hands-off/index.html
3 https://www.cbc.ca/news/business/boeing-ceo-testimony-us-senate-1.7238578
4 https://abcnews.go.com/US/families-killed-boeing-max-crashes-justice-departmentimpose/story?id=111258669
5 https://www.voanews.com/a/families-of-crash-victims-challenge-boeing-settlement-in-uscourt/6556276.html
organization that is authorized to issue certificates and conduct certain inspections on behalf of
the FAA “… under 49 U.S.C. 44702(d)6” The FAA felt compelled to chastise Mr. Tom Galantowicz, the Boeing ODA Lead Administrator, whose job is to represent the FAA, not Boeing, for suggesting that a Type Inspection Authorization (TIA) be issued for the Boeing 777-9 test program to proceed into its final certification flight tests, before the airplane was ready. At the bare minimum that letter should have been sent FROM the ODA Lead Administrator to the Boeing 777-9 project leadership, with FAA coordination. That was a glaring failure which any seasoned designee or FAA employee would instantly recognize and condemn. There is no appearance of undue influence at any moment but when an ODA conducts itself in that manner, one must wonder if the undue influence is built into the ODA management structure. FAA expectations are outlined in FAA Order N 8100.17 “Organization Designation Authorization (ODA) Holder Interference with ODA Unit Members (UM) and Communication between UMs and the FAA” This is important: When the ODA concept was in its early phase, the FAA public Notice of
Proposed Rulemaking (NPRM) declared “When performing a delegated function, designees are
legally distinct from and act independent of the organizations that employ them.
FAA Order 8100.15B8 Appendix B, Section 3 “Sample ODA Procedures Manual” states “The
management is responsible for establishing corporate policies that will not conflict with FAA
regulations or policy. The management is responsible to remain independent of, and not
interfere with, the findings and activities conducted under the ODA authority.”
Briefly, the AvWeek opinion piece suggested that the FAA might consider authorizing a third-party ODA financed by Boeing but working for the FAA, physically and administratively
separated from the company, with co-located FAA employees for a hand-in-glove FAA/ODA
partnership.
After watching the unfolding drama of the Calhoun and Whitaker testimony I decided to
resurrect the opinion piece and add to it because I believe it may be an effective way to assure
the objectivity of the ODA as a true third party without asking Congress for 100 or more new
FAA employees. If authorized and funded, those employees would need several years of training
and experience before they would be prepared for such an undertaking. In this case the ODA
6 https://www.ecfr.gov/current/title-14/chapter-I/subchapter-K/part-183/subpart-D/section-183.49
7 https://www.federalregister.gov/documents/2005/10/13/05-20470/establishment-of-organizationdesignation-authorization-program
8 https://www.faa.gov/documentlibrary/media/order/8100.15b.pdf
types I suggest will be authorized as Type Certification (TC) and Production Certification (PC)
ODAs, whereas the AvWeek opinion piece was focused only on a TC ODA.
Some advantages might be found in these areas:
Whistleblower Protection
We’ve been told of retribution and undue influence within Boeing. An employee who raises a
concern with a manager may feel exposed, or even a sympathetic manager may be afraid to
elevate a legitimate concern within his/her organization.
In 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.”
When I was working a Boeing project I realized their employees are in functional silos when it took nearly 2 days to find the “O-ring” specialist. I’ve since confirmed with some Boeing retirees that those silos exist throughout the company. This informs me that a Boeing engineer can become trapped by being so specialized that there is little hope of leaving the company and finding meaningful work elsewhere. That realization fits the House Committee quote above very nicely. “Free Range Engineers” who take on contract work, or are employed in smaller companies, often develop a “Big Picture” outlook that gives them an understanding of the interaction of various disciplines. That perspective is very difficult to develop when one is in a silo. It naturally follows that Boeing ODA Unit Members (UM), the individual designees authorized to approve design data within an ODA, probably function inside their own silos as well. Granted, they’re all certainly experienced engineers but until proven otherwise it’s safe to assume they matured inside their own silos.
In light of the existence of functional silos inside Boeing, is it surprising that 39% of Boeing
employees perceived themselves under pressure? Their narrow professional options might
easily sensitize them to the slightest management “request”.
Question: Can anything be done to eliminate Boeing silos? Honestly I’m not confident that can
happen simply because Boeing probably has a need for such specialization.
Please note I have barely touched on Boeing Quality Inspection and FAA Manufacturing
Inspection disciplines. A completely unique set of problems exists in the Production Certificate
world, where I myself have spent some time. They are struggling with similar problems that
must be confronted and there is no way I intend to ignore that reality, nor should anyone else.
With a third-party ODA in place, a Boeing whistleblower, manager or even a concerned
employee can call a number, be assured of protection and arrange a private meeting with ODA
staff to discuss any issue. The ODA will then coordinate with their embedded FAA employees
and their oversight office, and initiate an investigation if warranted.
Functional Considerations: Two Suggestions
Option 1: A single third-party ODA may not be able to adequately monitor all Boeing activities.
Boeing has 3 final assembly plants and announced deliveries of 737, 767, 777 and 787 models in
- The concept of separate ODAs for each plant and airplane model, including out of
production models, may be worth considering. Robust coordination and standardization among
ODAs will have to be considered. Another option might be for the ODA to establish “Branches”
by model.
The FAA Aircraft Certification Service has roughly 1300 employees nationally who are
responsible for approving aircraft designs and production, plus the continued operational safety
of everything that flies. “Everything that flies” means every nut & bolt, every windshield and
engine and every burner on every hot air balloon. In rough numbers, let’s say 300 are managers
or administrative employees, leaving 1000 Inspectors and Engineers to keep the skies safe.
There is no way, outside of increasing the FAA annual budget by a billion dollars or more, that
the FAA could even CONSIDER increasing direct Boeing oversight. Regular health checks from a
third-party ODA will inform the FAA that the ODA needs more or fewer Unit Members, and the
ODA itself will be able to bring in experienced contract engineers and inspectors who hold
individual FAA delegations in the necessary technical functions.
Every now & again there are discussions that the FAA might consider increasing staffing with a Fee for service model like their principal counterpart, the European Aviation Safety Agency
(EASA). That would require long, slow legislative (in)action and a third-party ODA does exactly that anyway. Problem solved.
A third-party ODA will be in a position to identify and track questionable practices or simple
mistakes and assure solutions are put in place and exercised to assure the efficacy of corrective
action. Once again, embedded FAA employees should have full access to all ODA activities
because it will act as an extension of the FAA.
Option 2: From an opinion I wrote in 2020 suggested a “hybrid” solution, in which the FAA
might “…consider an independent third-party ODA, which can be considered similar to an
outside Accounting Firm, auditing the financial records. In this case, the “inside ODA” would
continue to do the lion’s share of the approval work, while the outside third-party ODA conducts
a near continuous audit of both processes and results.” A handful of embedded FAA engineers
& inspectors will be helpful as well. A low-cost, long-term option that might be put in place
almost overnight.
Regulatory
The FAA Administrator has admitted that his organization has faltered in their Boeing oversight.
Based on the raw numbers of Aircraft Certification employees addressed above, increased
oversight is a practical impossibility. If the FAA were to be directed to double or triple their
Boeing oversight, the complexity, depth and expanse of the Boeing system are far too complex.
Political Considerations
I learned long ago that the FAA is necessarily a technical organization in a political world. The
politics of safety is as critical to public confidence as the technical reality. As an engineer, it took
a while for me to embrace that notion. After being involved in a small number of high-profile
situations, however, I was able to grasp the concept that sending an FAA Inspector out on an
otherwise pointless airline preflight inspection JUST for the TV cameras was good for all parties.
Money is also political, and we must be sensitive to the fact that “Boeing is the biggest
contributor to U.S. trade competitiveness.
9
”
Boeing’s position in our balance of trade makes them a sort of political third rail for any
government agency considering regulatory or criminal action. Also any politician with that
awareness may be reluctant to support decisive punitive action against Boeing for their recent
9 https://www.forbes.com/sites/lorenthompson/2019/05/20/how-boeing-got-here-its-not-the-story-youhave-been-hearinglately/#:~:text=Boeing%20is%20the%20biggest%20contributor,generate%20big%20surpluses%20every%20
year.
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and numerous failures, but this third party ODA may be seen as an exercise in tough love. It may
very well even benefit Boeing and the United States in the long run.
The same was true for the Department of Justice as well. For any number of reasons the DOJ
was probably reluctant to criminally indict Boeing, but joining the FAA in imposing the valid
corrective action of “firing” the Boeing ODA and moving it outside the company walls might be
seen by the public as an appropriate and balanced response.
Are there challenges? Yes, absolutely
Challenge #1: A TC ODA holder must hold a TC issued by the FAA and a PC ODA holder must be
a PC holder or applicant for TC or PC as required by FAA Order 8100.15B “ODA Procedures”.
Playing the jailhouse lawyer here, 14 CFR Part 183 “Representatives of the Administrator”,
Subpart D “Organization Designation Authorization10” does not impose those requirements. An
FAA Order gives mandatory instructions to FAA employees and makes the information available
to the private sector to help applicants and certificate holders manage expectations when
interfacing with the FAA. Further, as far as I know there is no TC or PC holder requirement in the
enabling legislation, which means an Order or an exemption to an Order can be revised or
published with a stroke of an FAA Executive’s pen. The FAA Administrator could simply say
“Make it so.” And so it shall be.
Challenge #2: A TC ODA is a very different animal than a PC ODA. This is not an absolute, but the
work of a TC ODA is finished when the TC is issued. There is much to do after TC issuance such
as constant fleet surveillance for design-related reliability and safety issues. Customer support
requires approvals for repairs and modifications in the field, and production errors must be
evaluated for possible airworthiness solutions. Still, those needs can be met with a relatively
smaller staff than that required for the original TC process.
A PC ODA, on the other hand, must be constantly engaged with the production process. As
stated in Order 8100.15B, “Holders of a PC ODA may issue airworthiness certificates and
approvals, determine conformity, perform evaluation leading to amendment of its production
limitation record, and approve minor changes to its quality control manual.” In other words, a
PC ODA is busy around the clock throughout the lifespan of any particular airplane model,
including post-production support, until the fleet eventually winks out and the TC can be put on
the shelf.
10 https://www.ecfr.gov/current/title-14/chapter-I/subchapter-K/part-183/subpart-D?toc=1
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In Kilroy Aviation, we like to say “A TC is a noun and a PC is a verb.” An issued TC is a thing, it can
sit fallow and still be valid, but maintaining a PC requires constant attention, and like a good
muscle it must be exercised frequently and fully.
Aggressively setting up and staffing a TC ODA might take a year or more, and a PC ODA might
easily require several years before it can be fully up & running. Also, neither can be “switched
off” overnight but maybe (semi-) permanence will have value. Considering the size, depth and
spread of the Boeing Company, both ODAs may take a while to fully mature. Let there be no
misunderstanding that breathing life into this concept will be a huge undertaking, but maybe,
just maybe, all parties will win, and some form of permanence will pay off.
Challenge #3:
DOJ, FAA and surviving family members are confronted by the fact that Boeing continues to
disappoint. The flying public demands safe skies and the FAA, DOJ and Congress must navigate
those demands against the simple fact that Boeing is that political “900 lb gorilla” and the
greatest single contributor to our balance of trade. We NEED a healthy Boeing.
The Boeing plea agreement came with a requirement that an objective entity assume oversight
of Boeing’s activities in areas where there have been indications of misbehavior. There are two
potential issues that must be considered. First and foremost is the possible interference with
the legitimate duties of the FAA, one might call it a “Turf War”. That might lead to friction and a
reduction in the ability of either party to fulfil its duties.
The second issue is the threat that an objective oversight organization can only be reasonably
expected to function for a finite period. What will fill the void when that organization dissolves?
Can Boeing be trusted to stay on the right track?
Who Wins, Who Loses?
The flying public:
- Win: Regained confidence in the FAA and especially Boeing.
- Lose: Nothing.
DoJ: - Win: A 3rd party ODA can be characterized as a rehabilitation exercise. DoJ may consider
negotiating with the FAA to receive reports of annual FAA 3rd party ODA audits. - Lose: Nothing.
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FAA & DoT: - Win: Closer coordination with the ODA because of the hand in glove relationship with
collocated FAA engineers and inspectors. Minimize or eliminate the need to chastise the
3rd party ODA for misbehavior as they found necessary for the Boeing ODA and their
777-9 TIA misbehavior. Possibly reduce resource requirements. Restore public and
Congressional trust. Assure direct and real-time visibility into all ODA activities. - Lose: Nothing.
Boeing: - Win: In the long run, Boeing may actually save money and time with fewer UM’s in the
3rd party ODA vs the current Boeing ODA. Regain trust with DoJ, FAA, customers and the
flying public. - Lose: Boeing will no longer be able to influence the 3rd party ODA. Of course that’s a win
for all other parties.
Moving Forward
The third-party Boeing ODA concept would admittedly be a difficult undertaking but it offers a solution to many aspects of the current troubles. It’s a new world we live in. When I started at Boeing as a Flight test Engineer in 1980, Seattle was an overgrown mill town, Boeing was the
nly show in town and there was great pride in designing, testing and building the best
airplanes in the world. There was no Microsoft, Amazon or Kirkland in Seattle and the global
economy was a very different sort of financial engine. I returned to Boeing in 1997 and after a
time in that second tour I literally referred to my beloved airplane company as a cold and
heartless manufacturer of simple commodities, might as well have been toasters. I used that
analogy quite frequently before and after returning to the FAA.
Might the Boeing company ever be trusted enough to regain their in-house delegation any time
in the future? The decline in Boeing’s integrity was a slow roll, it was boiling the frog and we
must ask ourselves if it can happen again. Here’s the thing: The FAA regulations and most
transport airplane designs have deep, deep tolerance for errors, for rounding an occasional
corner or skipping a step or two. The problem with departing from strict adherence to a black &
white design or process is that it’s very difficult to quantify just HOW FAR into that tolerance
one has drifted, especially when the easy path is taken in multiple areas that are blind to one
another. It doesn’t take long to lose the breadcrumbs that show the way back or find the right
path forward, but it’s OK. It’s always OK, until it isn’t. And with Boeing it hasn’t been OK for
quite some time.
So the response to that question might be another question: “Does it really matter if Boeing
never regains their ODA?” Is it possible that Boeing might even find a way to save money and
time working with a third-party ODA? Will the FAA benefit from having a handful of Engineers
and Inspectors sitting in partnership with the new ODA as opposed to being seen as “the
enemy” within Boeing? Will a third-party ODA help Boeing stay on the right track, regain and
maintain its formerly hard-earned reputation as the world’s best airplane manufacturer?
This white paper is nothing more than a proposal that I believe might have merit. Since this
concept is the product of one sometimes overimaginative brain, I present this concept with my
suggestion that it be examined by a small group of deeply experienced persons who can link
concept to reality.
Admittedly the problem is far too deep and broad-reaching for one old engineer to introduce a
complete solution with any hope of success. Here are some thoughts that might be a
reasonable start:
Recommendations & Thoughts:
- Stick with the DoJ plan and immediately form a continuous oversight supervisory audit
function that will report to the FAA and DOJ as the third-party ODA is being formed. - Form a task force of deeply experienced executives, engineers, inspectors and lawyers to
conduct a feasibility study for third-party TC and PC ODAs. - If feasible, begin planning & developing these ODAs at the earliest opportunity.
- Consider the notion that a permanent third-party Boeing ODA might be unavoidable
because of the time and effort required to put it in place.
I’ve presented 2 possible options that might easily be long term solutions to a thorny problem. In a recent conversation with a trusted journalist, he said he was unaware of any proposals aside from the DoJ 3-year monitor and my own suggestions. If one old engineer can come up with two reasonably sane options, a study group should be able to find a workable solution that all parties might find a solution that is palatable for all parties.
In closing, I am fully aware that nearly all Boeing employees and retirees care deeply about
Boeing. It’s fair to say, beneath the anger and sadness about the situation we’ve all found
ourselves in, there is a strong desire to join forces and help Boeing regain its proper place in the world. There is one way forward, and that is to confront the challenge head-on and do what we all know is the right thing. That goes double for myself. I was incredibly proud to start my engineering career in Boeing Flight Test and the pressure cooker of the dual 757 and 767 type certification programs. I carry that pride with me to this day. What a ride, what a ride.+++++++++++++++++++++++++
Mike Borfitz, CEO, Kilroy Aviation LLC
Full disclosure: I spent 13 years and two tours in Boeing as a Flight Test Engineer, Group Quality Senior Manager and Associate Technical Fellow for Safety and Certification. I also spent 20+ years and again, two tours, in the FAA as an Aviation Safety Engineer, Aircraft Certification Office Manager and Standards Staff Manager. I am collecting pensions from both. I am currently CEO of Kilroy Aviation, LLC, an FAA ODA authorized to approve Supplemental Type Certificates (STC), major aircraft modifications, by exercising the FAA TC approval process. I am an FAA Designated Engineering Representative (DER) authorized
to approve data in the Flight Test and Propulsion Systems for transport and small airplanes. Like my Kilroy partners, we are also Management DERs, authorized to act as Program Managers for the FAA There are only 80 Management DERs in the United States.
When I was the Denver FAA Aircraft Certification Office (ACO) manager I denied a person’s DER renewal in 1989 for abusing his delegation. The DER appealed to the 10th District Circuit Federal Court in Denver CO. My denial was upheld,. to the best of my
knowledge that was the first and only such appeal.
