FAA Pushes Back on Boeing Pressure to Recertify 737 Max by Year End; Agency Also Considering Major Revamp of Certification Process

Mirabile dictu, are we in the process of seeing a Federal regulator start to do something we haven’t seen in decades…actually regulate? The very much diminished FAA plans to take some serious steps in that direction.

The reason to think the FAA’s recent noises might be precursors to real action, as opposed to more better optics, is that the 737 Max debacle has led the agency to lose its most valued asset: that of having its aircraft certifications be accepted without independent vetting by other aviation regulators. Losing that would put American manufacturers at a serious disadvantage relative to foreign competitors. The stakes are so high that the FAA’s incentives are to do whatever it takes to get back to status quo ante.

And the FAA chief might be up to the task. The current FAA “Administrator” is Steve Dickson, who was sworn in on August 12, meaning he is the new guy who isn’t hamstrung by having to defend past decisions. He’s also been a pilot, first a fighter pilot and later flew commercial jets, including 737, and had retired from being the senior VP of flight operations for Delta, which included safety. Note that Delta did not buy the 737 Max. He’s also a law school graduate (which means not easily intimidated by suits). His official bio also states:

Captain Dickson is a strong advocate for commercial aviation safety and improvements to our National Airspace System, having served as chairman of several industry stakeholder groups and Federal advisory committees.

So he has the right background to be a safety turnaround guy. The question is whether he is committed enough to the task and a good enough bureaucratic infighter to pull it off.

One factor that we’ll discuss further below that may have forced the FAA’s hand (or alternatively, gives Dickson the leverage he needs), namely, a damning report by an international safety panel on the FAA’s performance on the 737 Max, which was released October 11.

How the FAA Got Itself in This Mess

As readers no doubt know, the Boeing 737 Max crashes generated a considerable amount of real, old fashioned journalism, which included looking into how the FAA came to sign off on the 737 Max in the first place. The very much shortened version is that Boeing made a boatload of significant misrepresentations to the FAA in order to keep from having to certify the 737 Max a new plane. The FAA was vulnerable to being snookered because over time it had changed its certification procedures so as to cede more authority to the manufacturer. The argument in favor of some reliance on the plane makers is that aircraft technology is moving so quickly that it is hard for anyone not in the field (pun intended) to stay current. However, over time, not only did the FAA designate manufacturer employees to effectively act as their representatives, also changed their reporting lines to more senior managers at their company, as opposed to the FAA. In other words, the system changed from “certification” to largely “self certification”. As we wrote in May:

In 2004, the FAA changed its system for front-line supervision of airline certification from having the FAA select airline certification employees who reported directly to the FAA to having airline employees responsible for FAA certification report to airline management and have their reports filtered through them (the FAA attempted to maintain that the certification employees could provide their recommendations directly to the agency, but the Seattle Times obtained policy manuals that stated otherwise).

Some readers might see the old “Designated Employee Representative” or DER system as pretty dodgy too, as in why wasn’t the FAA doings all the work? As the article explains, people who stay at the FAA for more than a very few years get out of date on current airline technology. The old DER system reportedly worked well. Despite the obvious potential for abuse, the Authorized Representatives (ARs) were treated with respect at manufactures…except for Boeing.

In other words, the FAA bet more and more that the airlines had incentives not to abuse the abuse-friendly protocols they’d put in place. But enter Boeing, with the profit fixation and the muscle to convince itself that it could mislead the FAA with no consequences.

The FAA in a Corner

The FAA has already lost control of the Boeing 737 Max recertification. Canada and the EU have already said they will make their own assessment of the MCAS software, as well as a “safety assessment” of the plane as a whole. The foreign regulators are also insisting on simulator training as a requirement. China is just about certain to be the last to give the 737 Max a clean bill of health just to make a point.

At stake is whether foreign agencies will defer to the FAA again. Again, China is pretty sure not to play ball given this opener. But getting everyone else back on board, particularly the EU regulator, is hugely important and FAA plans so far have backfired. As we wrote in September:

The FAA evidently lacked perspective on how much trouble it was in after the two international headline-grabbing crashes of the Boeing 737 Max. It established a “multiagency panel” meaning one that included representatives from foreign aviation regulators, last April. A new Wall Street Journal article reports that the findings of this panel, to be released in a few weeks, are expected to lambaste the FAA 737 Max approval process and urge a major redo of how automated aircraft systems get certified.

The aim of the panel, called the Joint Authorities Technical Review, was to expedite getting the 737 Max into the air by creating a vehicle for achieve consensus among foreign regulators who had grounded the 737 Max before the FAA had. But these very regulators had also made clear they needed to be satisfied before they’d let it fly in their airspace.

The JATR gave them a venue for reaching a consensus, but it wasn’t the consensus the FAA sought. The foreign regulators, despite being given a forum in which to hash things out with the FAA, are not following the FAA’s timetable. The FAA hopes to give the 737 Max the green light in November, while the other regulators all have said they have issues that are unlikely to be resolved by then. The agency is now in the awkward position of having a body it set up to be authoritative turn on the agency’s own procedures.

The report, released on October 11, was not pretty, and Boeing’s Dennis Muilenburg was removed from the chairman role. From USA Today:

The FAA’s certification process on the Boeing 737 Max was flawed in several areas, and a dozen changes are needed, according to a long-awaited report from an international team of safety experts….

The report Friday from the Joint Authorities Technical Review (JATR) panel…said the plane’s new flight control system, called the Maneuvering Characteristics Augmentation System (MCAS) was not evaluated in concert with other systems…

“The MCAS design was based on data, architecture, and assumptions that were reused from a previous aircraft configuration without sufficient detailed aircraft-level evaluation of the appropriateness of such reuse, and without additional safety margins and features,” the report says….

The report was also critical of the amount of freedom the FAA gave to Boeing’s designated certification representative during the certification process, saying it “delegated a high percentage of approvals and findings of compliance” to the representative. It notes that delegating authority to a company representative is common during certification but emphasized that the FAA’s “Organization Designation Authorization” program needs strong oversight.

“In the B737 MAX program, the FAA had inadequate awareness of the MCAS function which, coupled with limited involvement, resulted in an inability of the FAA to provide an independent assessment of the adequacy of the Boeing proposed certification activities associated with MCAS,” the report says.

It also singles out reports of “undue pressure” on Boeing employeesperforming the certification activities and says that “further erodes the level of assurance in this system of delegation.”

Among the recommendations in the report:

• The safety panel recommends the FAA institute a “top-down approach whereby every (aircraft) change is evaluated from an integrated whole aircraft system perspective.”
• The FAA should “promote a safety culture that drives a primary focus on the creation of safe products, which in turn comply with certification requirements. Aircraft functions should be assessed, not in an incremental and fragmented manner, but holistically at the aircraft level. System function and performance, including the effects of failures, should be demonstrated and associated assumptions should be challenged to ensure robust designs are realized.”
• The FAA should require a “documented process” to determine what information will be included in the airplane’s flight manual, fight crew operating manual and flight crew training manual.
• The FAA should review its policies in the wake of fatal accidents, ensuring that any corrective action needed is taken and that updated safety information is shared with the worldwide aviation community.

The FAA’s Dickson made the obligatory serious noises.

FAA Starts to Push Back Against Boeing

Boeing has continued to push the notion that the 737 Max would be certified to fly as of various dates that proved to be a crporate fantasy as new problems and concerns emerged. The latest was an announcement last Monday that it expected the 737 Max to get a green light in December, which goosed the stock. The Air Current reported that the Southwest Airlines Pilots’ Association (which recall is suing Boeing) wrote last week that the airline manufacturer was whinging that it would have to shut down production because it was running out of places to store planes.

The FAA has apparently had enough of Boeing trying to pressure them via the media. Interestingly, Dickson responded not by publicly slapping down Boeing but by making a countermove that had the same effect, of circulating a memo and including his “I’ve got your back” message in what appears to be a regular weekly video to the entire agency that is posted on YouTube. By sending them to the entire agency rather than, say, a narrow group overseeing the 737 Max review, this message were guaranteed to get to the press pronto. The story was reportedly quickly and widely. The Reuters version:

The head of the U.S. Federal Aviation Administration has told his team to “take whatever time is needed” in their review of Boeing Co’s 737 MAX, according to a Nov. 14 memo and video message reviewed by Reuters.

The comments came days after Boeing said it expected the FAA to certify the 737 MAX, issue an airworthiness directive and unground the plane in mid-December….

U.S. officials have privately said this week that Boeing’s timetable was aggressive – if not unrealistic – and was not cleared in advance by regulators.

On Friday, FAA Administrator Steve Dickson sent a clear message that the agency would make the decision on its own timetable…

Here’s the video:

Dickson also sent a memo to the head of the 737 Max team which appears to also have been circulated widely within the FAA, which was likely no accident. Courtesy The Air Current, the memo:

Dickson Considering Wide-Ranging Changes to Certification Process Consistent with JATR Report

The Wall Street Journal reports that Dickson is also considering root and branch changes to the certification process, although he also made clear he won’t move forward with that initiative until the 737 Max recertification process has been completed.

Dickson discussed an overarching shift, of having the FAA involved in certification from the get go. The advantages of having its nose in the tent from early on include: getting fixes made when they will be less costly to implement and having more communication with the aircraft-makers’ staff, which gives anyone who might be concerned more opportunity to raise alerts informally and formally.

From the Journal:

U.S. air-safety regulators are considering ways to alter fundamentally how they certify aircraft in the wake of Boeing Co.’s 737 MAX crisis, the head of the Federal Aviation Administration said in an interview Sunday….

There should be more dialogue between the FAA and plane makers over the course of the development of a new jet, Mr. Dickson said. He said that “human factors”—such as how rapidly airline pilots realistically are able to react in certain emergency situations—should be more of a priority in the process of designing jets, echoing earlier comments. “That probably needed to happen some time ago,” he said….

Today’s certification system, he said, provides manufacturers with a list of rules they must meet, but the FAA often is only brought in at the end to assess the design.

“The current approach is you’re answering all these questions and then it’s, ‘OK FAA, here’s my final exam. Grade my paper,’’’ Mr. Dickson said. “That’s the transactional approach. The holistic approach is more of a dialogue as you go through the process.”

Dickson distanced himself from his predecessor’s claim that it would take $10 billion of additional FAA funding over time to increase agency staffing and skill levels. Dickson is wise to stay non-committal. If the recertification is seen as a success despite Boeing’s aggressiveness and arrogance (and Boeing’s sense of entitlement is so visible as to help Dickson in resisting its demands), he’ll be in a much better position to propose a plan of reform and wheedle some funding from Congress.

One robin does not make a spring, but Dickson so far looks to be navigating a politically fraught process well, and most importantly, with the interests of pilots, flight personnel, and passengers foremost. Let’s hope he can stay the course.

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  1. james miller

    Good summary.
    As a high time private pilot with experience with the Designated Engineering Representative system, I’d say it’s adequate for home built aircraft, but totally inadequate and susceptible to massive influence for any corporate certification process. This issue has been discussed for years with real doubt as to it’s safety for large commercial aircraft by the EAA (Experimental Aviation Association) and the AOPA (aircraft owners and pilot’s association) Granted, us homebulders are operating at a different level than Boeing, but there’s a great deal of talent and experience represented by those two organizations mentioned above, and it would be a very good idea for anyone seriously interested in a competent third-party view to solicit their opinions.

  2. Ignacio

    $10 billion extra funding for the FAA looks like a very good deal if it helps US aircraft manufacturers to avoid costly and lengthy reviews by other agencies. The fact that Dickson’s predecessor made this argument is a telling story of the fox in the henhouse. The crapification of the FAA process of review was probably ruled by business friendly FAA administrators and Dickson has to ensure that his succesors don’t go backwards again.

    1. PlutoniumKun

      Indeed – this is something I’ve seen over and over again – private companies whinging about regulation and seeking to undercut regulators, and then getting themselves in all sorts of trouble when they succeed in their aim. Well resourced, competent public regulators in complex industries help everyone except get rich quick merchants. As Yves implies above, Boeing had a huge competitive advantage in having a friendly national regulator that was respected as the gold standard for safety certification worldwide. They’ve blown this through short term greed.

    2. d

      Actually this entire out sourcing scheme was driven and mandated by Congress . Course there was a lot of lobbying Boeing and others that got congress to make those changes

        1. d

          Yes, lots more than we think it does. Sort of goes with who sets the budget has an out sized influence. So say congress wanted to influence how the FAA did its job, it could just cut its labor budget plus all the agency to out source, and plus make the budget for that bigger. And thats probably how they did that. Now maybe just maybe some of congress critters are still around. They don’t any one to notice what they did

  3. Harry

    I think Yves has presented an excellent rationale to think the FAA would show some spine in dealing with Boeing. The Boeing management representation of FAA approval before year end put $30 on the share price. We are back quite close to the all time highs.

    I am a little skeptical that the FAA will really stand up to the Boeing at the end of the day, unless they have exhausted all other possibilities (see Churchill’s comment). Trump has handed out freebies to every company he could, probably with a view to donations for the next election. So many American rice bowls are dependent on this I can easily see how Boeing will end up with what they want, pretty much when they want it.

    Whether they should want it is the question. I just dont think they are interested in meta-questions.

    1. John k

      There’s too many international observers now… imagine Faa certifies and Europe doesn’t… who in us will fly it?
      And not good enough for head of faa ro fly it, maybe he’s the worlds best pilot. I want to fly a plane that is safe in the hands of the worlds worst pilot.
      IMO we’re past the point that trump can put in place a yes man who says, let her fly. In fact, his poor relations with foreign countries will likely delay when, if ever, the plane returns to service. And safety is where foreigners can happily dig in their heels no matter what tariffs he threatens.

  4. Darius

    I thought it sounded like Boeing was dictating it’s expectations rather than providing an estimate of the timetable. I’m glad to see FAA pushback. I only hope they follow through.

    1. d

      Well I suspect that if the FAA had done that, that there would be push in other countries, in that their gold standard of safety regulation is gone, and has little weight with others any more. Course its not just Boeing that has has done this theirs. Now if the respective representative bodies won’t stick their fingers into this again, safety should be safe for a while

  5. amn

    Those 97 paid lobbyists Boeing keeps in DC had better start earning their keep now (approx. cost 1 million/lobbyist each year to Boeing: 500K in salary + expense accounts, etc.).

  6. David

    Aircraft certification is not the only area that FAA has delegated authorities to industry. Oversight of operations of airlines has been given to non airline groups also.

  7. Brooklin Bridge

    While the value of the FAA status as good enough for us by foreign aviation safety organizations does indeed support the argument that the FAA has gotten religion on trying to regain what was once its core mission, I suspect this will not go without hiccups.

    To repeat the link of the other day in links, https://www.businessinsider.com/boeing-737-max-american-airlines-staff-beg-avoid-plane-2019-11, flight attendants seem to be suggesting safety and the 737 Max still needs considerably more work. This doesn’t obviate the possibility the FAA is starting to be serious, but it gives some perspective on the difficulty.

    From the articles and posts here on NC, there seems to me to be room to suggest that the 737 Max simply can not -with the oversized engine it has – be made truly safe. Moreover, one more such accident, related or not, will upend not only Boeing, but the FAA as any sort of standard of aviation safety period. Public opinion will curdle One wonders just how much the reality of this has sunk in.

    1. Tim

      Never rely on a flight attendant to do an engineer’s job.

      The MAX can be made safe through redesign of the MCAS system AND proper pilot training. Lot’s of aircraft have flight critical automatic systems that function as intended.

      The problem is limited to Boeing cultural arrogance concurrent with poor execution.

      1. Brooklin Bridge

        Your restating the problem; I never denied the importance of the engineer. But indeed, before your assertion can fly, you have to actually get the engineers rather than the marketing department to do the job and then have the airlines implement it fully which Boeing clearly did not and as yet hasn’t. Lacking that, the flight attendants make a pretty damned good canary in the coal mine.

        Your second assertion, that the 737 Max can be made safe needs something more than your happy generalization. 1) People would be well advised to consider Boeing’s rotten response to this whole thing and to assume they have not yet gotten the message that people’s lives are not to be determined by accountants trying to work within corporate mandates of pure greed. 2) The engine was not designed for that plane and it definately begs the question of whether or not the engineers can do anything anyway that is “safe” in human terms and not in those of acceptable cost/mortality ratios on some projected profits spread sheet.

  8. JBird4049

    Boeing is running of space to store its flying devices of death, so it might have to curtail production of something that nobody wants? This is what is putting the company into a tizzy? Fine. Like with PG&G the whole management should be (maybe metaphorically) defenestrated and replaced with competent, non-psychopathic management, and since it is so important to the national economy, nationalized.

  9. WestcoastDeplorable

    The FAA needs to stop being the cheerleader for the airlines and instead focus only on safety. Boeing thought they could get away with MCAS being 4x as powerful as originally presented and that resulted in two “heavy” airliners crashing. We should never forget this.

  10. VietnamVet

    This is an excellent analysis. The basic problem is that commercial aircraft manufacture is a multi-national duopoly between Boeing and Airbus. Boeing bought self-certification from Congress. Human greed and the neoliberal ideology that blesses it, blew up in the oligarchs and technocrats faces. The ongoing mini-world war over resources, tariffs and the rebirth of a multi-polar world make an agreement between European and American regulators unlikely and impossible with China as long as Hong Kong is in flames.

    If Dennis Muilenburg and board member Nikki Haley were half-way self-aware, they’d realize the only way out is spend the money now and require pilot training to instinctively handle the new flight characteristics of the 737 Max. If they can’t assure the safety of the aircraft, they and Boeing are finished. So is the Dow 500 if a third 737 Max crashes in a commercial flight after re-certification solely in the USA.

  11. rowlf

    I’d like to add a few other variables to the problem. During the 2000s it was hard to get hired on with the FAA as frequently they did not have a budget approved. Having worked with several high quality FAA personnel that were trying to get me hired as a inspector it was hard due to hiring freezes and also not having the appropriate HR ticket punches.

    I like the quiet professionals in the FAA that show up and say that they have found something that bothers them and we should work together to make the operation of the aircraft safer. No problem, we jumped right on that approach. It was an easy pitch that would be foolish not to work on. That is a lot easier than the grand standers who want to collect scalps as trophies that you have to take step-by-step through policy and procedure to see where the fault is. When everything is in balance the operators self report to improve safety. With a good safety culture this happens and when it doesn’t the FAA should be firm.

  12. Carbpow

    For many many years the NTSB made safety recommendations to the FAA following accident investigations. Few were implemented after industry resistance. Too expensive etc. Law suits from surviving family members finally made safety more economical and flying safer. After years of bribes aka campaign contributions and millions spent on lobbying the FAA was captured, the next thing that must happen is tort reform if maufacturers are to properly care for the most important things. Executive compensation and the stock holders.

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