The Federal Aviation Administration (“FAA”) relies on the mantra “safety is our business, our only business” where, for example, justifying changes in aircraft flight paths over heavily populated residential communities. But is that reality? Not according to the Office of Inspector General, U.S. Department of Transportation (“OIG”) report of October 23, 2019, Department of Transportation’s Fiscal Year 2020 Top Managerial Challenges (“OIG Report”), when dealing with members of one of FAA’s primary constituencies, the aircraft manufacturers.
Specifically, the OIG Report highlights significant “challenges FAA faces in meeting its safety mission,” p. 1. Most notable is the correction of its lax oversight of aircraft certification procedures as graphically demonstrated by the recent deaths of 346 people in two separate crashes of Boeing’s 737-Max 8 aircraft, at least preliminarily thought to have been caused by systemic malfunctions in computer systems designed and installed by Boeing but never disclosed to operators.
Although federal law does allow FAA to delegate a critical amount of certification work to private organizations on FAA’s behalf, see, e.g., 49 U.S.C. § 44702(d); and although, in 2009, FAA established the Organization Designation Authorization (“ODA”) program to standardize its oversight of manufacturers and others delegated to perform certain functions on FAA’s behalf, the OIG Report found “management weaknesses with a number of FAA’s oversight processes.” Id. at p. 2. These include inconsistencies in the way in which FAA interpreted FAA’s role and trained ODA personnel for oversight by the agency.
In addition, six years later, the OIG Report continued to find that FAA’s oversight of the ODA program controls were not risk based, i.e., had not provided oversight teams with the tools or guidance in data they should use to identify the highest risk areas in aircraft design. Finally, the OIG Report found that FAA performed oversight of only 4% of personnel conducting certification of companies that produce and supply components to the principal aircraft manufacturers.
These lapses have come to a head this week in the testimony of Boeing’s Chief Executive, Dennis Muhlenberg, before a joint committee of Congress. In that testimony, Muhlenberg conceded that Boeing “made mistakes” for which it plans to atone. The fundamental questions, however, continue to be: (1) why FAA failed in its principal mission of guaranteeing the safety of the nation’s air transportation system, 49 U.S.C. § 40101(a)(1), by “dropping the ball” on its regulatory oversight role; and (2) perhaps more fundamentally, why Congress gave the “fox” the right to guard the “henhouse” by allowing the delegation of FAA’s regulatory role to those it was supposed to regulate. Stay tuned for the answers as Congressional hearings progress.