The FAA has historically delegated limited authority to various private persons and entities to perform specific tasks that typically would be performed by FAA personnel. The delegation is authorized by statute and allows the FAA to focus its resources on safety critical or novel issues while allowing subject matter experts from private industry to perform comparatively more routine functions.
Organization Designation Authorization (“ODA”) is a well-established framework by which limited airworthiness functions are delegated to organizations. It is periodically in the news and subject to investigation, criticism, and debate.
But, as the FAA finds itself without sufficient resources to keep up with all of the tasks demanded of it, and due to sound practical reasons for empowering private experts with authority that relieves some of the FAA’s administrative burdens, ODA is not going away any time soon.
Indeed, the scope of FAA delegation is likely to expand in the future. The discussion below provides an overview of ODA framework in order to encourage informed discussion about it.
Background: FAA Delegation of Authority
The FAA delegates certification functions to qualified private persons such as engineers, mechanics, pilots, and aircraft dispatchers, as well as organizations. Both individuals and organizations with delegated authority act as representatives of the FAA and are subject to oversight much like persons and organizations within the Agency itself.
The FAA’s use of designees is not novel, and ODA merely constitutes a framework that extends the well-established use of individual designees to the enterprise context.
The FAA’s ODA program delegates certification authority to an organization subject to oversight by the FAA, and, in turn, the organization manages and supervises individual employees that perform tasks for which the organization holds delegated authority. Although employees performing ODA functions are not required to hold individual delegated authority, in practice the tasks they perform are similar to those of individual designees; the difference is that they report directly to the organization, not the FAA.
An ODA holder, like an individual designee, acts as a representative of the FAA with respect to clearly defined functions within the scope of its authority. An organization may obtain ODA authority to perform delegated functions relating to engineering, manufacturing, operations, airworthiness, or maintenance.[1] The nature and scope of ODA in the design and manufacturing context is often misunderstood.
A holder of type certification (“TC”) ODA may not issue an original type certificate for a new type design, although it may issue airworthiness certificates for individual aircraft. Functions that a TC ODA may perform include review and approval of technical data; compliance and conformity determinations; and acceptance of instructions for continued airworthiness.[2]
In connection with the approval of new aircraft type, a TC ODA holder may review design data and find compliance with the regulations, draft a type certificate data sheet, and submit a data package supporting certification to the agency. The FAA must then review ODA’s data package, assess ODA’s work, and then, only when the FAA ultimately concurs with ODA’s conclusions, issue the type certificate.[3] A production certificate (“PC”) ODA holder may not issue an original production certificate. It may, however, determine that a product conforms to its type design and is in a condition for safe operation.[4]
Organization Designation Authorization 101
An ODA holder must establish a discrete unit in its organization that reports to the FAA and, in effect, acts as the FAA’s agent with respect to delegated activities. Even though ODA holder pays the unit members’ salaries, unit members ultimately answer to the FAA when they are wearing ODA hats. Communications between ODA unit members and the FAA typically run through a holder’s employee known as an ODA administrator.
The FAA conducts oversight through an organization management team (“OMT”) within the Agency comprising personnel and subject matter experts appropriate to the activities of the holder. An OMT manages the holder’s activities, approves procedures, provides guidance and feedback, and reviews the organization’s work to assess its performance.[5]
The OMT may place limitations on ODA holder’s authority as appropriate to reflect the staffing, experience, qualifications, and capabilities of the organization.
Issuance of ODA
The FAA’s authority to delegate certification functions to private persons and organizations is statutory.[6] The regulations governing designees and ODA are set forth in 14 CFR Part 183. The FAA may delegate “any function determined appropriate” to an ODA holder consistent with the holder’s qualifications.[7]
In order to qualify for ODA, an applicant must:
- Have sufficient facilities, resources, and personnel, to perform the functions for which authorization is requested;
- Have sufficient experience with FAA requirements, processes, and procedures to perform the functions for which authorization is requested; and
- Have sufficient, relevant experience to perform the functions for which authorization is requested.[8]
The FAA grants ODA when it determines that the applicant can show that it meets the above criteria and:
- The organization’s FAA workload is large enough to warrant approval;
- The FAA will benefit from granting ODA; and
- The FAA has the resources available to manage the authorization.[9]
If the applicant meets all requirements and the FAA finds that a need exists for delegating the requested function, the agency issues an “ODA Letter of Delegation” that states the type(s) of ODA authorized.
The letter is not transferrable and is effective through a date shown on the document itself.[10] The FAA grants new ODAs for a duration of two years and may renew ODA for periods of two to five years at a time through successful completion of an application and review process.[11]
The FAA may terminate ODA any time at its discretion.
Organizational Requirements
The FAA believes that a “key to success” of ODA system is that the holder’s executive management “fully supports” ODA unit.[12] In furtherance of this principle, the FAA requires senior management of the organization to sign a memorandum of understanding (“MOU”) in which the company expressly accepts the responsibilities attendant with ODA and acknowledges its obligations.[13]
All persons in the organization that manage members of its ODA unit “in any capacity” must read and understand the MOU.
The FAA imposes various requirements on ODA holders intended to ensure that they properly accomplish delegated functions in accordance with their authorization. An ODA holder must establish an “ODA unit,” which is an “identifiable group of two or more individuals” within the organization that perform authorized functions.[14]
At least one person in the unit must be identified as ODA administrator.[15]
An ODA administrator is responsible for ensuring that the organization performs all authorized functions in accordance with the regulations and its procedures manual. The administrator “must be in a position that provides authority to act in the FAA’s interest.”[16]
In particular, he or she must:
"[R]eport to a level of management that is senior enough to enable ODA unit to administer duties for the FAA without undue pressure or influence from other organizational segments or individuals."[17]
Minimum requirements for an ODA administrator include:
- Technical experience with the functions performed under ODA;
- At least five years of experience working with the FAA on projects similar to those authorized; and
- Sufficient knowledge, judgment, and integrity.[18]
The other persons in the unit – “ODA unit members” – must have the “experience and expertise”[19] to perform the delegated functions, and must:
- Be in a position that provides “enough authority and time to perform duties without pressure and influence from other parts of the organization”;
- Have no “conflicting restraints” while performing authorized functions; and
- Must not have “responsibilities that conflict with those of ODA unit.”[20]
Proposed ODA unit members must be prescreened, evaluated, and approved by the FAA.[21] Each member must receive initial and recurrent training every two years from the holder. In addition, they must attend periodic FAA training seminars and standardization workshops.
It is not unusual at companies for a person to perform functions on behalf of the enterprise and as an ODA unit member. This reflects the fact that a company typically performs functions that are beyond those encompassed by ODA authorization and performs specific delegated functions as an ODA holder on behalf of the FAA. When an employee performs FAA functions delegated to ODA holder, they must act within the scope of ODA delegated authority and in accordance with FAA direction and guidance.
ODA holder must have an FAA-approved procedures manual that spells out all pertinent information about the holder’s program, including authorized functions and limitations, procedures, organizational structure, training requirements for personnel, record keeping processes, etc.[22] ODA procedures manual is an essential instrument, which “must address all procedures and limitations regarding functions performed by ODA holder.”[23] An ODA holder must comply with the procedures contained in its manual.
The FAA recognizes that, beyond the fundamental construct of one or more ODA administrators and ODA unit members, the structural model for an ODA holder will “vary significantly” depending on the functions, size, and corporate structure of the organization.[24] Developing a sound structure to manage ODA is an important task, and companies holding ODA should periodically review their organizations to ensure that ODA function is sufficiently robust.
Obligations of ODA Holders
In performing delegated functions, ODA holders must generally follow procedures described in FAA orders that apply to Agency personnel that perform analogous functions. If the holder cannot literally comply with FAA procedures, the FAA may approve alternate procedures that are sufficiently close to its own.[25]
An ODA holder has a number of ongoing obligations, which include:
- Providing ODA unit members “sufficient authority to perform the authorized functions;” and
- Ensuring that no “conflicting non-ODA Unit duties” or “other interference” affects the performance of authorized functions by ODA unit members.[26]
The regulations also require ODA holders to cooperate with the FAA in its oversight of the unit,[27] allow inspections by the agency “at any time and for any reason,” [28] and comply with detailed recordkeeping requirements.[29]
The regulations also impose a variety of notification, error trapping, and continuous improvement obligations.[30]
For example, with respect to operational approvals, a holder most provide notice of any errors or problems in connection with the issuance of authorizations or certificates, or of any authorization or certificate issued to an applicant that does not meet requirements.[31] When irregularities in connection with authorizations take place, the FAA may order ODA holder to perform an investigation and suspend the issuance of similar authorizations until corrective actions are completed.
Any change involving ODA administrators or the structure of the holder or unit requires advance notice to the FAA.[32]
An ODA holder may not perform any authorized function if a change in facilities, resources, or organizational structure affects how the holder performs that function,[33] and must notify the FAA of any change that could affect the holder’s ability to comply with applicable regulatory requirements within 48 hours of the change occurring.[34]
Conclusion
For years, the FAA has been looking at ways to expand the scope of ODA to additional delegated functions. During this time, ODA has come under critical review, with pointed questions raised in the media and by Congress regarding the appropriateness of the FAA’s authority to delegate.
In December of 2020, Congress passed the “Aircraft Certification, Safety, and Accountability Act,”[35] which, among other things, included provisions intended to enhance the FAA’s process for approving ODA unit members and the Agency’s oversight and surveillance of ODA holders, as well as limit the FAA’s ability to delegate authority to make compliance findings with respect to critical design features.
Although changes and improvements to ODA will undoubtedly continue to be made, ODA framework will continue to exist. ODA is a mature process that reflects a logical extension of the time-tested, successful system of delegation to individual designees.
Despite what some commentators may argue, no evidence exists that the concept of ODA is inherently flawed. Like any complex process, its success and failure depend on the actions of individual people working within a framework of procedures. It should be the subject of continuous scrutiny and improvement, but not an unjustified or uninformed attack.
About Our Authors
Marc Warren is the co-leader of the Adams and Reese Aviation and Aerospace Team. Practicing law for more than 40 years, Marc is a respected leader in the international aviation bar and advises many of the world’s leading aviation and aerospace operators and manufacturers. With deep connections to industry regulators, associations, and leaders, Marc steers major airlines, defense, transportation, logistics and infrastructure companies, trade associations, and public venues, through FAA and Department of Transportation regulatory compliance, government investigations, and enforcement matters.
Paul Alp is the co-leader of the Adams and Reese Aviation and Aerospace Team. His practice, spanning more than 25 years, lies at the intersection of aviation regulatory, legal, and technical issues. Paul represents and advises airlines, manufacturers, repair stations, on-demand operators, technology companies, insurers, commercial space companies, corporate flight departments, and uncrewed aircraft companies on international and domestic aviation and aerospace issues. He provides a full range of advice on compliance, operations, safety, risk management, licensing, certification, airworthiness, security, crisis preparation, and emergency response.
Notes
[1] 14 CFR § 183.41(a).
[2] See generally Order 8100.15B, Organization Designation Authorization Procedures, 8-1 – 8-2 (May 16, 2013).
[3] Id. 8-6j.
[4] Id. 9-1 - 9-6.
[5] See Order 8100.15B, 5-2, 5-3 and Appendix F, 23.
[6] 49 U.S.C. § 44702(d)(1).
[7] 14 CFR § 183.49(a).
[8] 14 CFR § 183.47.
[9] Order 8100.15B, 2-1.
[10] 14 CFR § 183.67.
[11] Order 8100.15B, 4-4, 5-8.
[12] Id., 3-4.
[13] Id., 3-7 and Appendix A, Fig. 14. See also id. at 4-4 (“At least one member of the applicant’s senior level management, typically the organization’s chief executive officer, must sign the MOU.”)
[14] 14 CFR § 183.41(b).
[15] 14 CFR § 183.51(a). An organization may have more than one ODA administrator. The lead administrator must be a full-time employee, while alternate administrators need not be full time employees but must meet all qualification requirements. See Order 8100.15B, 3-5.
[16] Order 8100.15B, 3-4.
[17] Id., 3-6.
[18] Id., 3-5.
[19] 14 CFR § 183.51(b), (c).
[20] Order 8100.15B, 3-4.
[21] Id., 3-13.
[22] See generally 14 CFR § 183.53(c).
[23] See also Order 8100.15B, 3-9.
[24] Order 8100.15B, 3-4.
[25] Id., 2-7.
[26] 14 CFR § 183.57(b), (c).
[27] 14 CFR § 183.57(d).
[28] 14 CFR § 183.59.
[29] 14 CFR § 183.61.
[30] See generally 14 CFR § 183.65.
[31] 14 CFR § 183.65.
[32] Order 8100.15B, 3-11.
[33] Id.
[34] 14 CFR § 183.57(e).
[35] Pub. L. 116-260.