Congress Passes Massive Legislation With Significant Aviation Impact

Congress has passed a massive new piece of legislation that provides for appropriations throughout the government. The version that we reviewed has 5593 pages – it was not a final version (the pagination was off, among other things), but it provides a view as to what subjects are being addressed.

There is an entire division devoted to aviation matters. The section is identified as “Division V.” Not roman numeral “V.” The letter V (this is a huge document). This entire division is separate from the Covid-19 related funding matters found in the Division N, Title IV.

Division V is entitled “Aircraft Certification, Safety and Accountability.” It includes new legislation on the following points (this is a partial list only):

  • The FAA must initiate a Safety Management Systems (SMS) rulemaking within 30 days and must issue a final SMS rule within 24 months. This is a much faster schedule than the FAA’s current path, and may prevent the FAA from relying on some of the best practices being developed through the current SMS pilot program. The SMS requirement is limited only to companies that hold both type certificate and production certificate, although the FAA may choose to expand the scope of the proposed rule.
  • A number of changes related to ODAs (mostly limited to transport aircraft ODAs), including:
    • a requirement that all ODA unit members must be approved by the FAA. I was part of the ARAC group that created the draft regulations and policy for ODA (Subpart 183(d)), and the original concept was that mature ODAs would be able to rely on their internal mechanisms to assess, train, and appoint competent unit members using FAA-approved processes. This was intended to allow ODAs to train and develop their next generation of unit members. Putting the FAA into the appointment loop by statute eliminates one element of an ODA’s control over its future development.
    • ODAs and the ODA program will be subject to extra review
    • In order to minimize interference by an ODA holder with the ODA unit members, it is now illegal to interfere with a unit member. Interference is defined to include “harassment, beratement, or threats, that a reasonable person would conclude was intended to improperly influence or prejudice an ODA unit member’s performance of his or her duties” and also “non-ODA unit duties” that might conflict with performance of the ODA duties (this may lead to a de facto requirement to relieve ODA unit members of any non-ODA duties).
  • Where there are critical features identified for a transport aircraft, the FAA may not delegate findings related to such systems until the FAA has reviewed and validated any underlying human factors assumptions.
  • Type certificate applicants and holders will be required to disclose certain safety critical information and will be required to disclose changes in that information (including newly discovered safety information). This appears to expand the current disclosure requirements under 14 C.F.R. 21.3. New punitive laws for this issue makes a violation punishable by a million-dollar civil penalty.
  • A new dispute resolution process for design approval activities. An important element of this is that dispute resolution decisions will NOT be subject to judicial review, which could leave parties without a first amendment mechanism for petitioning for redress of grievances in certain circumstances.
  • Codification of the two-year disqualification period for former FAA employees who want to work in the private sector.
  • Requirement for new rulemaking on systems safety assessments for transport airplane projects.
  • New whistleblower protections
  • A heightened focus on human factors
  • New standards for Part 147 schools (those that teach A &P Mechanics) (ASA joined in the ATEC efforts to promote this goal)

About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. Since 1992, he has represented aviation trade associations and businesses that include aircraft and aircraft parts manufacturers, distributors, and repair stations, as well as both commercial and private operators. Blog content published by Mr. Dickstein is not legal advice; and may not reflect all possible fact patterns. Readers should exercise care when applying information from blog articles to their own fact patterns.

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