NEWS Alert

On March 8th, 2023, the Senate Committee on Commerce, Science, and Transportation conducted a hearing to interview Billy Nolen, Acting Administrator of the Federal Aviation Administration, on implementation and oversight of the Aircraft, Certification, Safety, and Accountability Act (Pub. L. 116-260, hereafter referred to as “ACSAA”), Chairwoman Maria Cantwell (D-WA) led the hearing.

The ACSAA was enacted on December 27, 2020 as Division V of the Consolidated Appropriations Act of 2021. A section-by-section summary of the ACSAA from Senator Cantwell’s office may be found here. A Senate Committee on Commerce, Science, & Transportation press release summarizing the ACSAA may be found here. The ACSAA focused on improving the Federal Aviation Administration’s (“FAA”) aircraft certification process and oversight.

Sen. Cantwell questioned Mr. Nolen about concrete steps taken to investigate alleged conflicts of interest or pressures on FAA staff regarding aircraft certification. Nolen described the following steps taken by the FAA:

1. A voluntary safety reporting program for FAA Aviation Safety (“AVS”) employees;
2. A policy on non-interference by manufacturers with Organization Designation Authorization (“ODA”) unit members; and
3. A cultural survey gathering the opinions of AVS staff.

Sen. Cantwell also queried Mr. Nolen on new civil penalties created by § 107 of the ACSAA for interference by any manufacturer supervisory employee with ODA unit members and on the status of ACSAA-mandated FAA rulemaking to impose a safety management system (“SMS”) requirement on aircraft manufacturers. Nolen responded that the FAA has not imposed a civil penalty for interference with ODA unit members since the new penalties were enacted.

Regarding the SMS rulemaking mandate, Nolen noted that SMS has been implemented at most airports and that the FAA is planning for SMS to be required across the aviation industry. (Note: The FAA issued a Notice of Proposed Rulemaking on January 11, 2023 regarding the SMS mandate for aviation manufacturers; it also extends an SMS requirement to certain other types of aviation entities.)

Sen. Cantwell further asked Mr. Nolen about the Service Difficulty Reports and if there are any concerning trend lines regarding aircraft in the marketplace today. Mr. Nolen responded that he personally has not seen any trends that raise red flags and noted that the FAA’s oversight has improved due to the maturing of Safety Management Systems. Sen. Cantwell asked how the public can access information on trends monitored by the FAA. Mr. Nolen answered that the FAA works to be as forthcoming and transparent as possible. Sen. Cantwell and Mr. Nolen agreed that, though the civil aviation system is resilient, Congress and the FAA should never take that resiliency for granted.

Sen. Cantwell noted that the FAA’s workforce will be a big topic in upcoming hearings, especially on authorizing appropriations for FAA recruitment and retention. Mr. Nolen confirmed that the FAA is committed to hiring "gray beards", i.e., experienced technical experts, in order to maximize the safety provided by the aircraft certification process. The FAA has hired fourteen Chief Scientists and Technical Assistance (“CSTA”) and four Senior Technical Advisors and is looking to hire more. Sen. Cantwell emphasized the importance of having technical expertise at the beginning of the certification process to prevent incidents such as the Boeing MAX Maneuvering Characteristics Augmentation System problem from occurring in the future.