In a momentous shift of its normally conciliatory relationship with aircraft manufacturers, the United States Senate, on June 17, 2020, introduced the “Aircraft Safety and Reform Act,” legislation that will, if enacted, effectively reverse the provisions of the Federal Aviation Administration Reauthorization Act of 2018 (“2018 FAA Act”) which allow aircraft manufacturers to perform, with a minimum of FAA oversight, the certification for safety purposes, of the aircraft it manufactures.

The proposed, bipartisan, legislation, seeks to control both the performance of the industries to which were delegated the aircraft safety certification responsibilities (“ODA”) under the 2018 FAA Act, and the FAA personnel charged with overseeing their compliance.

First, and most fundamentally, the Act establishes the requirement for “surveillance and audit” by FAA, § 4(c), including “planning inspections, audits and monitoring activities on a continuous basis,” which must include the “technical proficiency and expertise of individuals” selected by the ODA to perform the certification function, and allows the FAA Administrator to revoke such appointments at any time, § 5(a), amending 49 U.S.C. § 44736(d)-(f). The FAA Administrator must also assign FAA aviation safety engineers with appropriate expertise to make findings of compliance.

In addition, the ODA industries must “identify and develop best practices,” § 6(a), amending 2018 FAA Act, § 213(c). These practices must prevent undue pressure on all ODA employees, as well as “perceived regulatory coziness or other failures to maintain independence between FAA and ODA holder or unit member.” See, e.g., § 6, amending 2018 FAA Act, subsection (c).

Further, the legislation establishes a “safety reporting program” which, among other things, prohibits retaliation against both ODA and FAA employees who “voluntarily report when they believe an aspect of an aircraft design may be noncompliant, nonconforming, or unsafe,” § 14(b)(1), as well as express protections for whistleblowers, § 15, amending 49 U.S.C. § 42121(a).

Finally, and perhaps most notably, the proposed legislation monitors the performance of FAA as well, where it provides “a review of – (1) the inspectors, engineers, managers, and executives in the FAA who are responsible for the certification of the design, manufacture, and operation of aircraft intended for air transportation for purposes of determining whether the FAA has the expertise and capability to adequately understand the safety implications of, and oversee the adoption of, new or innovative technologies, materials, and procedures that designers and manufacturers of such aircraft may adopt or produce,” § 18(a)(1).

In summary, Congress’ bipartisan move to seize control of, and thereby regulate, design and manufacture of aircraft and associated technologies, the fundamental component of interstate commerce in the modern age, is long overdue. The ultimate passage, and perhaps amendment, of the proposed legislation is still on the table. Stay tuned for the final act.