Protection of ODA Interference Whistleblower- shield or sword

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Congress response to Boeing ODA mess is a package of definitions, policies, procedures and paper

FAA issues draft AC–terms meet Congress’ broad protection mandate

To one ODA problem, added regulation applies to all

The draft could allow employee to complain and then be protected

The FAA, under a Congressional mandate (the Aircraft Certification, Safety, and Accountability Act, Pub. L. 116-260), has drafted a 70 page, ~3,000 word AC (N 8100.ODA) entitled “Organization Designation Authorization (ODA) Holder Interference with ODA Unit Members (UMs) and Communication between UMs and the FAA”. The below article by one of the leading journalists on the subject of the Boeing Max 8 and given the Congressional focus on the same tragedy in drafting the above statute, the story is framed on protecting the ODA Unit Members from interference by the TC applicant.

Those perspectives might be characterized as being “prisoners of the moment.” Not to say that the Boeing-ODA interaction is a model for the interaction among the FAA, the ODA and Boeing. That horrid  interpersonal script must be rectified.

 

oda history chart

What has been forgotten is that ODAs have successfully contributed to certification at the highest levels of safety FOR 63 YEARS- proved not only on paper and more significantly/visibly by billions of safe flights. More relevantly, Congress endorsed[1] the concept of ODA. Why did it specifically endorse and expand this administrative construct? The legislative history recognized that the certification process needed more technical support and by utilizing  the proven concept of delegation, aircraft could be found to meet the highest standards through these “FAA Auxiliary” resources.

Anyone claiming to know the FAA Certification process must be aware of the Part 23 revision, the safety risk analytical shift from “prescription” to “performance” and the impact of those major organizational initiatives on the agency’s rank and file. Not excusing the malevolent atmosphere at the working level (behavior that appears from revealed tweets and communications to  have been unprofessional), but the abysmal communications can be causally linked to some of the problems.

One of the fallacious assumptions in the regulatory/legislative toolkit is that for every problematic situation, there are paperwork solutions. The Aircraft Certification, Safety, and Accountability Act instructed the FAA to establish policies, manuals, procedures and paper tracks to “ensure that ODA unit members can conduct delegated functions without interference by their employer.

So, what is INTERFERENCE? The AC adds word

“ ‘interference’ in 49 U.S.C. 44742(d)(2) includes not only outright acts such as harassment, beratement, threats, and reprisal, but also the presence of other activities that conflict with the UM’s performance…

“…review the totality of the circumstances, including whether any other action, assigned duties, activities, or time constraints inhibit the UM from properly performing their authorized functions..”

“experienced or have perceived any interference…”

“… Evidence of reprisal may include, but is not limited to, changing the employment status, pay, duties, work location, or retention rating, of any UM that reported a concern related to interference alleged to have occurred within the previous twelve months.”

The point of this verbiage is to establish a protective envelope; so, expansive words are more likely to cover any action that may impinge on the employee’s work. Broadly worded language, however, may turn a shield into a sword.

The work of the UM with the TC applicant and the FAA is almost daily. Conversations run like this:

        1.“how is the report coming?”

    1. “my calculations differ by several orders of magnitude with your’ s.”

3.“what is the problem with this analysis?”

Or even

4.“would you like a coffee?”

The context of these inquiries could result in a negative perception by the protected UM. Add these predicates and a complaint under these defining terms:

  1. Though the question is not demeaning, there is a large PERT chart on the wall that shows a tight schedule. The UM hears this as a slam.
  2. There is a legitimate issue about the equations and analysis, but the UM may infer that the question is meant to be demeaning. {expression, body language}.
  3. Again, this is a perfectly proper question, but the UM feels as though the TC (maybe not this person) does not respect his/her work.
  4. Meant to be a courtesy, the UM thinks that has been seen hanging out at the coffee machine and this is perceived as a negative observation.

The SMS approach to aviation safety regulation has turned from punishment to corrective and the draft AC lists such options-

“A determination by the ODA Administrator as to whether or not interference occurred and a detailed explanation of that determination;

  • If the ODA Administrator determined interference occurred, the root cause(s) of the interference, both individual and systemic; and
  • A Summary of all corrective actions proposed and taken.”

Later in the AC, there is language as to what should be done to the TC in the event that the transgression is determined to be intentional, and these two alternatives are specified:

  1. FAA OMT Response to Reports of Alleged or Suspected Interference.

         1) Individual Civil Penalty for Supervisory Employees of ODA Holders

       (2) Suspension and Termination of ODA authority. An FAA delegation is a privilege and not a right.

The level of proof needed to be found on the administrative record needs be close to the criminal evidentiary standard of beyond a reasonable doubt,, or indeed N 8100.ODA could become a sword not a shield.  The potential for a dysfunctional employee to assert interference carries heavy penalty to the TC organization AND once having made an interference claim, the UM is protected from any reprisal for one year(¶5.a(2))

ODA paperwork for protection

 


FAA Moves to Protect Safety Employees From Manufacturer Interference

By Reuters

 

ODA engineers

Feb. 7, 2022, at 10:48 a.m.

By David Shepardson

WASHINGTON (Reuters) -The Federal Aviation Administration (FAA) said Monday it was issuing draft guidance seeking to protect aviation employees who perform government certification duties from interference by airplane manufacturers and others.

Congress in December 2020 approved legislation boosting FAA oversight of aircraft manufacturers, requiring disclosure of critical safety information and providing new whistleblower protections in the wake of two fatal Boeing 737 MAX crashes that killed 346 people and led to the plane’s 20-month U.S. grounding.

An FAA survey released in August 2020 found some safety employees reported facing “strong” external pressure from industry and raised alarms the agency does not always prioritize air safety.

Agency employees reported being “over-powered in meetings with industry.” Boeing did not immediately comment Monday.

The draft guidance, which is open for comment, “calls for manufacturers to monitor, report and investigate all allegations of interference and to report the results to the FAA. It also establishes a clear path for these employees to speak freely with FAA certification officials at any time.”

In November, the FAA told Boeing that some of its appointees overseeing aircraft certification tasks lack expertise and directed the largest U.S. planemaker to quickly address the issue.

FAA ODA OVERSIGHT

In a Nov. 2 letter seen by Reuters, the FAA told Boeing an oversight review conducted this summer found some appointees did not have required expertise and found some of those Boeing employees performing certification tasks for the agency “are not meeting FAA expectations.”

Under the reform law, the FAA in January began exercising new oversight over selection of candidates who perform safety work on the FAA’s behalf.

Boeing is nominating candidates but FAA must approve or reject them.

Boeing agreed to a $2.5 billion settlement with the U.S. Justice Department into the MAX certification as part of a deferred prosecution agreement.

(Reporting by David Shepardson; Editing by Mark Potter and Bernard Orr)

Copyright 2022 Thomson Reuters.

 

[1] Not only has Congress encouraged delegation for decades, it has also continued to expand the limits of delegation. In the 2012 FAA Reauthorization Act, Section 303: DESIGN AND PRODUCTION ORGANIZATION CERTIFICATES, Congress declared:

“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’).” See also 2004 NPRM-Establishment of Organization Designation Authorization Procedure

whistle at Boeing hangar

 

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