12.28.20

Cantwell’s Comprehensive Bipartisan, Bicameral Aircraft Safety & Certification Reforms Signed into Law

Aircraft Certification, Safety, and Accountability Act will strengthen FAA oversight of aircraft manufacturers, reform aircraft certification process, increase Congress’ oversight of the certification process, and provide new resources to address emerging technology

WASHINGTON, D.C. – Comprehensive bipartisan, bicameral aviation safety legislation written and negotiated by U.S. Senator Maria Cantwell (D-WA), the Ranking Member of the Senate Committee on Commerce, Science, and Transportation, and other congressional aviation leaders was signed into law by President Trump last night. The Aircraft Certification, Safety, and Accountability Act will implement needed new aircraft safety and certification reforms made clear in the wake of the Boeing 737 MAX crashes, including strengthening the Federal Aviation Administration’s (FAA) direct oversight of aircraft certification, implementing new integrated systems analyses of new and derivative aircraft, requiring aircraft manufacturers to disclose technological changes to their aircraft, and implementing new safety reporting requirements and whistleblower protections. The legislation was included in the Consolidated Appropriations Act. A summary of the bill can be found HERE.

In addition to Cantwell, the legislation was also negotiated by Commerce Committee Chairman Roger Wicker (R-MS) and House Transportation & Infrastructure Committee Chairman Peter DeFazio (D, OR-04) and Ranking Member Sam Graves (R, MO-06).

“It's so important that we make safety the number one priority in the United States. If we want to be number one in aviation, you have to be number one in aviation safety. Chairman Wicker and I worked with our colleagues on both sides of the aisle to produce important legislation that improves the safety reforms needed at the FAA, the safety reforms of oversight of manufacturing and the certification process, and reforms that will help us here in Congress better stay on top of the information as far as the certification process,” Senator Cantwell said when the bill passed the Senate. “I want to thank all of the families who helped us in communicating why these safety reforms are important … and to let them know that even though we're putting a big down payment on safety reforms in the United States Congress by passing this legislation, this process does not stop with the passage of this legislation.”

“This historic legislation is a major step to prevent the certification of substandard aircraft and avoiding future crashes,” said Michael Stumo, whose daughter Samya died in the Ethiopian Airlines flight 302 crash. “ET302 families across the world have worked hard to eliminate excessive delegation and to hold those who hide safety defects accountable. We are indebted to Chairman DeFazio, Ranking Member Graves, Chairman Wicker and Ranking Member Cantwell for their hard work and dedication to safety and the future excellence of the US aviation industry.”

Key provisions of the Aircraft Certification, Safety, and Accountability Act will:

  • Restore FAA Approval of ODA Unit Members: The FAA will be responsible for approving and removing manufacturers’ engineers who act on behalf of the FAA — the Organization Designation Authorization (ODA) unit members, as found under the FAA’s Designated Engineering Representative (DER) delegation program. The bill authorizes $3,000,000 annually for fiscal years 2021 through 2023 in new appropriations for the FAA to provide staffing and resources necessary to undertake this work. 
  • Enable Direct FAA Oversight and Communication: FAA safety advisors will be assigned to manufacturers’ authorized representatives so that the FAA has direct and ongoing oversight and communication with the ODA unit members responsible for certification activities, another key return to the DER program. The Joint Authorities Technical Review identified how the lack of communication and interaction between the FAA and ODA unit members hindered FAA’s oversight over the manufacturer and awareness of safety issues with the 737 MAX.  
  • Require Integrated Safety Analysis of Design Changes for All New and Derivative Aircraft: The FAA must conduct a rulemaking to require proposals for new aircraft designs (type certificates) and variants of existing aircraft designs (amended type certificates) to undergo an integrated system safety analysis. The bill requires FAA to undertake an analysis of the cumulative effects of proposed design changes to the aircraft, human factors issues, and impacts on training for pilots and maintenance personnel. In the 737 MAX certification process, FAA failed to review the proposed design changes at an aircraft level, which led to FAA misunderstanding how the MCAS system would operate. This reform would help catch how new design features interact with other aircraft systems. 
  • Ensure New and Derivative Aircraft Comply With Latest Flight Crew Alerting Regulations: The FAA would be prohibited, beginning two years after enactment of the bill, from issuing a type certificate for a new airliner design unless the airplane is equipped with a centralized crew alerting system that helps a pilot differentiate, prioritize, and respond to warnings, cautions, and advisories activated on the airplane. The FAA certified the 737 MAX even though the aircraft’s flight crew alerting system did not comply with the latest airworthiness standards. In response to a National Transportation Safety Board recommendation, the bill also would ensure for all future airplanes, including the 737 MAX derivatives, a manufacturer will complete a systems safety assessment on the flight deck alerting systems.
  • Mandate Safety Management Systems (SMS) for Manufacturers: Safety management systems (SMS) provide a data-based means of managing risk and continuously monitoring hazards in order to mitigate safety risks before they materialize. The bill directs FAA to issue regulations requiring that aviation manufacturers implement SMS, as recommended by the National Transportation Safety Board, Joint Authorities Technical Review, and other leading safety authorities. SMS is recognized as a key tool for improving safety culture. While the FAA has required SMS for airlines, the agency has failed to require the same of manufacturers. 
  • Require Disclosure of Safety-Critical Information: Manufactures would receive up to a $1 million fine for violating disclosure requirements for safety-critical information. This includes information regarding flight control systems and other systems whose failure or erroneous activation would present a hazardous or catastrophic risk. The FAA is also directed to revoke an airline transport pilot certificate held by an individual who fails to disclose such safety-critical information on behalf of a manufacturer. 
  • Prohibit Interference with FAA Designees: There are new civil penalties for any manufacturer supervisory employee who interferes with (e.g., harasses, berates, or threatens) an ODA unit member’s performance of authorized functions on behalf of the FAA and requires all ODA unit members to promptly report any cases of interference experienced or witnessed at a company. The MAX investigations found numerous instances of managers exerting undue pressure on ODA unit members in conflict with their safety duties.
  • Prohibit Incentives for FAA Employees Based on Industry Schedules: The bill repeals existing law allowing FAA employees to receive bonuses or other financial incentive based on meeting manufacturer-driven certification schedules or quotas.
  • Repeal Authority for Industry to Set FAA Performance Goals: The bill repeals authority for the industry-friendly advisory panel, the Safety Oversight and Certification Advisory Committee (SOCAC), to set FAA performance goals and metrics for the agency’s Aircraft Certification and Flight Standards services that do not prioritize safety in the aircraft certification process. Safety must come first, not accelerated approval schedules. 
  • Require Up Front Review of Design Assumptions and New and Novel Aircraft Technologies: The bill prohibits the FAA from delegating its authority to ODA unit members until the FAA reviews and validates any underlying assumptions used in critical system design features. It also requires the FAA Administrator to establish an integrated project team of experts from the FAA and federal agencies, such as NASA and the Air Force, to advise the FAA on the certification process for aircraft with new technologies and novel systems. The integrated project teams will give an independent review and verification of the manufacturer’s submissions to the FAA, and recommend studies, analyses, and reports to aid in FAA’s review.
  • Create New Safety Reporting for FAA Employees: FAA employees will have new confidential reporting channels to flag safety concerns during certification or oversight processes. The Administrator will be required to review submitted safety reports, identify the root cause of any safety issue, and take appropriate action to rectify any errors. In a recent FAA internal survey, certification engineers questioned their ability to raise safety concerns without fear of reprisal and FAA leadership’s commitment to safety. This provision will provide a channel for FAA employees to report concerns without fear of retribution. The FAA must provide yearly report to Congress on the effectiveness of the safety reporting program. 
  • Repeal Authority Permitting Self-Certification by Industry: The bill repeals the “certified design and production” (CDPO) authority and makes clear that aviation manufacturers will not be able to self-certify their own aircraft, aircraft engines, and propellers. Congress first granted this CPDO authority in the 2003 FAA Reauthorization and expanded it in the 2012 Reauthorization. While the FAA has not yet implemented this authority, this bill would remove this authority and prevent FAA from further removing itself from the certification process. 
  • Repeal Authority for Automatic Delegation of Certain Functions: The bill repeals the requirement that the FAA must fully delegate all eligible tasks to an ODA, and repeals the requirement that the FAA must delegate all functions which are deemed by the FAA to be low and medium risk. Without these repeals, FAA would only be able to revoke a task delegated to an ODA if, after an investigation or inspection, FAA determined it was in the public interest. The bill ensures that FAA is in charge of making delegation decisions. 
  • Provide Expert Project Teams to Advise on Certification: The FAA will be assisted by an integrated project team—made up of technical experts from the FAA and federal agencies such as NASA and the Air Force—for certification of proposed large commercial aircraft. Throughout the process, the team will advise FAA on the plans, analysis, assessments, and reports necessary to properly evaluate these designs and technologies as well as advise FAA whether a request for an exemption or exception from the latest airworthiness standards is warranted. This team will provide more scrutiny of manufacturers’ designs, assumptions, and system safety assessments starting at the beginning of the certification process, providing more transparency to the certification process. The FAA must respond to the team’s recommendations in writing and include this in the certification project records.
  • Strengthen International Standards: The bill authorizes $5 million annually for fiscal years 2021 through 2023 to enable the FAA to provide increased technical assistance to foreign civil aviation authorities. This is an increase from the $3 million the FAA spends on this work annually. The bill also authorizes $2 million annually for fiscal years 2021 through 2023 in new funding to support FAA’s efforts to develop international requirements, issued by International Civil Aviation Organization, for training programs and operational policies on pilot training, automation and human-machine interface.
  • Require FAA to Review and Verify Human Factor Assumptions: The FAA must review and verify all underlying human factors assumptions before delegating certification tasks related to safety critical design features, such as flight control systems. In the 737 MAX certification process, the FAA failed to review and verify Boeing’s assumptions about pilot response time to the Maneuvering Characteristics Augmentation System (MCAS) activation (these assumptions turned out to be incorrect), and this bill would ensure that FAA scrutinize those assumptions more closely. 
  • Establish a National Air Grant Program: The bill establishes a National Air Grant Program that will assist Congress and the FAA with keeping peace with changing technology. The program will create opportunities for graduate and post-graduate students to closely engage with Congress and the FAA to develop policies aimed at promoting U.S.-led growth and innovation in the aerospace sector. The bill authorizes $15 million annually for fiscal year 2021 through 2025 in new funding for the fellowship program. 
  • Identify Emerging Safety Trends: A new biennial report to Congress, conducted by the Transportation Research Board, will identify emerging safety trends in air transportation. Based on accident investigation data from the National Transportation Safety Board, FAA, air operators, and foreign aviation safety authorities, the report will illuminate the latest trends impacting aviation safety, domestically and internationally, so policymakers and FAA can stay ahead of them. 
  • Require an Annual Assessment of FAA Safety Culture: The FAA is directed to conduct an annual safety culture assessment to survey aviation safety employees on the state of safety culture at the agency’s divisions responsible for the certification, production approval, and continued airworthiness of aircraft. The FAA’s internal survey revealed that frontline employees believe that senior leaders at the agency are overly concerned with achieving the business-oriented outcomes of industry stakeholders and are not held accountable for safety-related decisions. This assessment will inform the biennial emerging trends report to Congress.
  • Build FAA Expertise for Emerging Technologies: The FAA is required to examine and address any shortfall in the agency’s expertise regarding innovative aviation technologies, including future technologies. The bill authorizes $27,000,000 annually for fiscal years 2021 through 2023 in new funding for the FAA to recruit and retain engineers, safety inspectors, human factors specialists, software and cybersecurity experts, and other qualified technical experts who perform certification duties. Building the agency’s technical expertise will ensure that safety regulators can keep pace with ongoing technological advancements in the aviation industry. 
  • Facilitate Continuing Education of FAA Certification Employees: FAA personnel who hold positions involving aircraft and flight standards certification will receive additional continuing education and training, including in human factors, modern flight deck systems, and automation. The bill authorizes $10 million annually in new appropriations for fiscal years 2021 through 2023 in new funding for this program. 
  • Establish a New Center of Excellence (COE) on Flight Automation and Human Factors: The new COE will promote and facilitate collaboration among academia, the FAA, and aircraft and airline industry stakeholders to research automation and other technological advancements in aviation and examine issues related to human system integration and flight crew and aircraft interfaces. The bill authorizes $2 million annually for fiscal years 2021 through 2023 in new funding for the new COE. 
  • Increase Funding for Research on Composites and Advanced Aviation Materials: The bill authorizes funding for the FAA’s Joint Advanced Materials and Structures (JAMS) at $10 million annually for fiscal years 2021 through 2023. Led by the University of Washington and Wichita State University, the center of excellence (COE) conducts research on advanced composites and aerospace materials for commercial aircraft to support the FAA’s certification program. Funding for the COE was last authorized from fiscal years 2012 through 2015 at $500,000 per year, and the new authorization is double the approximately $5 million the FAA has funded the COE at in the last five years on average.   

Senator Cantwell has been a congressional leader in the push for aviation safety and certification reforms. In November, bipartisan aviation safety legislation she introduced with Chairman Wicker passed the Commerce Committee.

She has introduced multiple other pieces of legislation to codify expert recommendations into law and improve technical expertise to improve aviation safety – many of which have been incorporated into the final text of the Aircraft Certification, Safety, and Accountability Act. In October 2019, she introduced a bill to implement aviation safety recommendations from the NTSB, U.S. Department of Transportation’s Office of Inspector General (DOT IG), and the International Civil Aviation Organization (ICAO) that seek to address challenges related to increased automation in commercial aircraft cockpits, as well as how pilots respond to flight deck alerts and uncommanded flight control inputs. Earlier this year, she introduced bipartisan legislation to create one-year paid aerospace policy fellowship roles for graduate and post-graduate students in Congress, at the FAA, and in other federal agencies to help build a pool of talent conversant in emerging technologies for the FAA and Congress to draw from as they make policy in the aviation sector. She also introduced bipartisan legislation to authorize the FAA to work with other countries to strengthen pilot training standards and enable ICAO to further enhance worldwide aviation safety and training standards.

A summary of the Aircraft Certification, Safety, and Accountability Act, with explanations of key provisions, can be found HERE. The full text of the legislation can be found HERE, starting on page 2903.

Video of Senator Cantwell’s floor speech about the legislation is available HERE and audio is available HERE.

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