This month marks the one-year anniversary of the first of two deadly Boeing 737 MAX crashes – Lion Air Flight 610. The new Boeing 737 MAX aircraft plunged 189 people to their watery grave in the Java Sea. When Boeing and U.S. aviation regulators failed to act, another flight, Ethiopian Airlines Flight 302, was doomed to the same fate five months later, killing another 157 people. The 737 MAX fiasco has not only devastated families of crash victims, ripples of its failure have reverberated across the industry worldwide. It also has diminished the U.S. Federal Aviation Administration’s (FAA) credibility and standing as a global leader in aviation safety, even driving civilian aviation regulators like the European Union Aviation Safety Agency (EASA) to break ranks from a normally united regulatory community.
The FAA is the agency charged with the dual mission of promoting aviation and overseeing aviation safety in the U.S. Questions about the agency’s process in certifying the 737 MAX surfaced in the aftermath of the first tragedy. However, the crash of the second 737 MAX all but shattered what trust remained in the FAA by regulators worldwide.
Hours after the Ethiopian Airlines crash Ethiopian officials decided to send the flight data recorders or “black boxes” to France for analysis rather than the U.S. Typically, boxes that were manufactured in the U.S. would be sent to the U.S. for examination and analysis. It was one of the first visible signs that the agency’s reputation was in danger. Such doubts about the FAA’s capacity to lead in aviation safety were reinforced days later when the U.S. became the last country to ground the defective aircraft. The decision came only after significant outcry from bipartisan lawmakers and the public. President Donald Trump, who just hours earlier tweeted his support for Boeing and faith in the safety of the 737 MAX, was pressed to act and finally grounded the aircraft.
For decades, the FAA and, by extension, the U.S. had been lauded for having the gold standard in aviation safety. The FAA led other countries to take necessary precautions to protect the flying public. For example, in 2013, the FAA, which was under the direction of former Department of Transportation Secretary Ray LaHood, grounded the Boeing 787 Dreamliners due to battery fires. The U.S. was the first country to act and other countries followed. The FAA also took the same dramatic step in 1979 when it grounded McDonnell Douglas DC-10 planes after deadly crashes.
Yet, problems with the 737 MAX left the FAA hesitant to act, revealing the current nature of an agency that was once a dominating voice in global aviation. Years of deregulation, which had become even more aggressive under the Trump Administration, combined with significantly limited funding and failure to appoint an FAA director under the new administration, revealed the agency’s reality – it had become little more than a political pawn.
Armed with an agenda to pander to corporate interests such as Boeing, Trump enacted Executive Orders 13771 and 13772, codifying his dubious deregulatory plan that placed egregious and unnecessary strain on many federal agencies, including the FAA. In June 2017, the Administration halted new regulations on the aviation industry and provided industry stakeholders and trade groups a forum for submitting a wish list of regulations they wanted on the chopping block.
Then, just weeks before the Lion Air crash and after years of delaying the bill, Congress passed and the President signed into law the FAA’s Reauthorization Act, which included two provisions that granted more power and authority to aircraft manufacturers regarding the certification process. These provisions strengthened the “hands-off” or self-certification approach, increasing aircraft manufacturers’ influence over the certification process and demonstrating Boeing’s leverage over regulators. Boeing claimed to spend $15 million on its federal lobbying efforts to push for passage of these two provisions alone.
As the investigations into the two crashes continued, more information came to light about the development and certification of the 737 MAX and its infamous MCAS. The information revealed how Boeing’s actions – its efforts to minimize the aircraft’s dangerous defects and claims that a minor software fix was all that was needed – “severely undercut the FAA’s leadership in air safety worldwide,” Peter Goelz, a former managing director of the U.S. National Transportation Safety Board (NTSB), explained to CNN.
Now, six months following the grounding of the aircraft, the agency is once again facing backlash from global regulators as well as pressure from Boeing, which hopes to get the planes back in the air by year’s end. The airplane manufacturing giant has been working to address the problems with its faulty aircraft since the first tragic crash. The process has been delayed numerous times as more problems with the 737 MAX continue to arise. Once it does submit the proposals to the agency, however, global regulators aren’t convinced the FAA will adequately test the safety of the updated 737 MAX before it lifts the ban.
The key concern of global regulators is over the FAA’s certification process used to approve the 737 MAX. Although Boeing was aware of the 737 MAX’s problematic design, it provided false data about the new system in its “self-certifying” reports to the FAA. Critics, from global regulators to U.S. lawmakers, argue that adequate oversight from an independent agency responsible for aviation safety should have been able to identify the defects during certification and before approval.
The agency, in response, convened the Joint Authorities Technical Review (JATR) Panel in April. It was directed to independently determine if the FAA adequately approved the aircraft. The panel is chaired by veteran NTSB safety investigator Chris Hart, and includes international aviation experts from Australia, Brazil, Canada, China, the European Union, Japan, Indonesia, Singapore and United Arab Emirates, Flight Global reported.
The panel was initially given 90 days to conduct its review, but the FAA recently confirmed the independent body will need additional time to provide its feedback regarding U.S. certification efforts. Regardless of the panel’s findings, the FAA continues to stand by its self-certifying process and remains noncommittal about what actions, if any, it will take to incorporate the panel’s recommendations.
Tensions over the FAA’s and the 737 MAX’s deficiencies among aviation regulators reached a breaking point following a briefing in August Boeing conducted about the aircraft. The meeting was cut short when regulators from Europe, Brazil, the U.S. and other countries argued that Boeing failed to “provide technical details and answer specific questions about modifications in the operation of MAX flight-control computers,” the Wall Street Journal reported.
Following the early adjournment of the Boeing briefing, Patrick Ky, executive director of the European Union Aviation Safety Agency (EASA), publicly broke ranks with the FAA. In a presentation to the members of Parliament, Director Ky said that the FAA is in a “very difficult situation when they say this [737 MAX] is good to go” and that “international authorities” will likely want a second or third opinion regarding the 737 MAX’s airworthiness. He also opined that there will be “a very strong change in the overall worldwide hierarchy or relationship between the different authorities.”
Before it considers lifting the 737 MAX ban, Ky explained that EASA will not rely solely on the FAA’s determination of the 737 MAX’s safety. His agency will run its own tests. According to CNN, Ky said that his agency has assigned 20 people to review “safety-critical systems” on the 737 MAX and their review already uncovered “significant technical issues” including issues involving the MCAS, which has been reported as the likely cause of both crashes.
Director Ky also explained that EASA approval would be based on meeting four conditions.
- Design changes proposed by Boeing are EASA approved (no delegation to FAA).
- Additional and broader independent design review has been satisfactorily completed by EASA.
- Accidents of JT610 (Lion Air) and ET302 (Ethiopian Airlines) are deemed sufficiently understood.
- B737 MAX fight crews have been adequately trained.
Additionally, EASA has informed Boeing that the 737 MAX must demonstrate its stability while operating in unusual and extreme maneuvers, “both with the updated MCAS in operation and with the system switched off,” Simple Flying reported. Further, EASA representatives plan to participate in flight testing in Boeing’s simulators for a full week as part of its review process.
The discord between the FAA and its civil aviation counterparts such as the EASA have aviation executives expressing worry and disappointment, Bloomberg reported. Alexandre de Juniac, who heads the global airline trade group International Air Transport Association (IATA), which represents airlines worldwide, said that the discord could introduce a “patchwork of different systems” and that a staggered return to service of the 737 MAX could be bad for airlines. He also warned that such a haphazard approach would significantly reduce the consistency and effectiveness of the safety system, according to The National.
If the FAA lifts the ban before other regulators, it will likely put Boeing in an awkward position and further diminish the agency’s credibility. Despite the increasing damage to its and the FAA’s credibility, however, Boeing remains resolute that its 737 MAX will return to the skies sometime in 2019.
Beasley Allen has filed a number of lawsuits for families of victims of the Ethiopian Airlines crash. Mike Andrews in our Personal Injury & Products Liability Section focuses much of his practice on aviation litigation and he is representing these families. Mike is also investigating other potential cases. He visited the crash site and surrounding areas several times this year and was overwhelmed at the carnage left behind after Flight 302 hurled itself and passengers 30 feet into the earth.
Mike also has written a book on litigating aviation cases to assist other aviation lawyers, “Aviation Litigation & Accident Investigation.” The book offers an overview to the practitioner about the complexities of aviation crash investigation and litigation.
Sources: CNN, Flight Global, Wall Street Journal, European Union Aviation Safety Agency, Simple Flying, Bloomberg, and The National
This story appears in the October 2019 issue of The Jere Beasley Report. For more like this, visit the Report online and subscribe.