Year-End Funding Bill Creates New Requirements for Aircraft Certification
As part of the massive omnibus funding bill passed by Congress yesterday, which contains the second round of COVID relief money, Congress also passed significant legislation reforming and enhancing aircraft certification. Titled the “Aircraft Certification, Safety, and Accountability Act” (Division V of this mammoth bill, and that “V” is the letter, not the roman numeral, so it’s the 22nd division in the bill, not the 5th), the bill follows intense congressional scrutiny into the way that FAA verifies the safety of aviation equipment and systems following the two Boeing 737 MAX crashes in 2018 and 2019.
Establishing, implementing, and overseeing the standards for design, production, operation, and maintenance activities is the Federal Aviation Administration’s (FAA) most important mission. The critical role of implementation—known as certification—ensures public confidence in the safety of the system for business and leisure travel. Industry stakeholders and experts have raised concerns about the efficiency and functionality of FAA’s certification and approval processes for products, operations, maintenance, and other areas. Without a strong and agile agency that can both maintain and improve safety, the continuity of the American aviation industry as a global safety leader is at risk.
The new law does not change the basic framework for certification. Instead, its provisions are intended to strengthen some of the key aspects of a delegated certification system, which is the standard way of certifying aircraft equipment, parts and systems around the world. The bill makes changes in four main areas:
New regulations for delegation
The bill has several sections that direct the FAA to make changes to particularly high risk aspects of aircraft. The law prohibits FAA from delegating certification of a “novel or unusual design feature” for critical components. The bill has provisions tasking FAA with setting international standards for changes to type certifications, creating new pilot training and evaluation, and requiring integrated, interdisciplinary teams when developing new products or systems. The bill also requires aircraft and aerospace manufacturers to formally adopt Safety Management System frameworks.
The bill places tighter controls on individuals assigned to certify on behalf of the FAA. Under a delegated certification system, FAA authorizes independent companies and organizations (Organization Designation Authorization or ODA) to assign authorized representatives to act on behalf of FAA to validate compliance with FAA design requirements. The bill increases requirements on FAA to approve such individuals at ODAs.
New staff for FAA oversight
The bill includes an additional $27 million in authorizations for annual appropriations for the FAA to hire new staff to help fulfill the new certification requirements. The bill makes it clear that FAA employees are not to receive compensation adjustments based on meeting or exceeding certification deadlines. As part of the hiring, FAA is required to conduct a workforce review to make sure it has the expertise and capacity to strengthen its oversight. However bill also contains language mandating “cooling off periods” for certification employees transitioning between FAA and private industry.
New transparency measures
The bill lays out several measures intended to increase transparency of the certification regime. The bill repeals previously-enacted statues that set performance objectives and metrics for the FAA’s aircraft certification activities. Instead, the bill requires all manufacturers to disclose all safety-critical information about flight controls and other components to FAA, airlines, and pilots. The FAA must also establish an appeals process for certification decisions and an oversight committee to manage the effectiveness of its compliance program.
The bill includes several whistleblower provisions, including strengthening and clarifying the role of the FAA whistleblower office. The bill adds aviation manufacturing employees to the existing laws that protect airline employees from whistleblower retaliation. The bill also direct FAA to implement a confidential, voluntary safety reporting program for FAA engineers, safety inspectors, and others.
FAA is required to brief Congress on specific measures taken to reinforce the certification system, create a report to Congress on the status of its changes to its certification processes in response to reports and reviews related to the 737 MAX crashes.
New training, review panels and research
The bill has more than a dozen sections related to new training requirements, review panels, and research funding. Several of those sections call for reviews and research on ODAs, delegation systems, and certification reform. Research topics include human factors, emerging safety trends, and advanced materials. Training to develop the skills of current professionals and invest in a new “National Air Grant Fellowship Program” to bring new talent to the field are also included.
Through our Aviation Working Group, Eno has been tracking and making recommendations for certification reform for years. Reform has been needed because the aviation industry is rapidly changing and growing, and the FAA has not been equipped to respond to these challenges. Some of Eno’s recommendations are reflected in the bill text, including:
- Continued the use of delegation, but focus on the most safety critical elements.
- Coping with new technologies while maintaining high standards for safety.
- Following national and international best practices for establishing and adhering to risk-informed certification, shifting its paradigm from the current prescriptive certification system.
- Creating a body of government officials, labor representatives, industry employees, and independent experts to collaboratively advise the agency on issues of safety and compliance, as well as application and interpretations of regulations.
Today, the FAA has a double mission. It is the provider of air traffic control and the overseer of the safety of the aviation industry, while also regulating itself as a provider. For now, it must work within this current structure to implement the new aspects of the bill to help strengthen the certification system and provide more effective certification, implementation, and safety oversight.