While U.S. lawmakers and regulators worldwide are questioning the Federal Aviation Administration’s (FAA’s) credibility and the approval process of the Boeing 737 MAX, the company’s CEO, Dennis Muilenburg, continues praising the agency and its oversight. The move lends credence to critics’ argument that the relationship between Boeing and the FAA has been far too cozy and that Boeing had too much power and influence over the certification process.
During a Congressional hearing before the House Transportation & Infrastructure Subcommittee on Aviation earlier this month, lawmakers questioned FAA acting administrator Dan Elwell about how the agency approved the MAX, including the self-certification process where the agency delegated approval of the portions of the aircraft to Boeing. Lawmakers also questioned Elwell about the FAA’s delay in grounding the plane following the Ethiopian Airlines crash. The U.S. was one of the last countries to take the aircraft out of its skies. The hearing was the first of a series the committee promised to conduct as it investigates how the now-grounded Boeing 737 MAX was approved.
Elwell defended the agency and attempted to place much of the blame on the pilots.
But even an internal review by the agency itself revealed deficiencies in the approval process. Initial findings from the review were released the day before the hearing, confirming that agency engineers and mid-level managers deferred to Boeing’s own safety analysis of the Boeing 737 MAX aircraft and specifically its new automated stall-prevention feature that is part of the flight control system, the MCAS, according to the Wall Street Journal. The internal review was launched in March, yet, when questioned about the review and its findings by Rep. Rick Larsen (D-Washington) during the Congressional hearing, Elwell claimed he wasn’t aware of the internal assessment.
“The mounting evidence simply confirms what we have known since the first 737 MAX crash, which is that Boeing was allowed to self-certify the 737 MAX with little to no agency oversight,” said Mike Andrews who handles complex aviation litigation for Beasley Allen and is working with families of those who perished in the two deadly MAX crashes. “Boeing keeps vowing to ‘fix’ the problems with MAX and to earn back consumers’ trust; however, the company continues blaming others and seeks to hide behind an agency and a process that has already failed to adequately protect the flying public.”
Although the agency’s internal review didn’t reveal any evidence that Boeing attempted to deliberately provide faulty data to the FAA, the review discovered that the aircraft manufacturing giant failed to flag the MCAS as a system “whose malfunction or failure would cause a catastrophic event.” This designation would have prompted a closer examination of the feature.
Whistleblowers, including former FAA inspectors and former Boeing engineers who were involved in developing and approving the MAX, have also reported that the shift in U.S. oversight policy for the industry – relying more on self-certification – prioritized the manufacturers’ bottom lines above human life and safety. The FAA and Boeing pressured regulators and conscientious employees to quickly approve the MAX and get it in the air. Whistleblowers explained that they were discouraged and even preempted from pursuing problems with the aircraft.
Boeing said a “fix” for the MAX is complete but hasn’t filed a formal application for recertification with the FAA. Elwell said the FAA will conduct a thorough review of the updated MAX design when Boeing files a formal application for re-certification of the plane. He did not give a timeline for the review but has previously said he anticipates the approval to happen this summer. He also did not share details about the process or discuss changes to improve the process that was in place when the MAX was originally approved.
Following a daylong summit of international aviation regulators last week, Elwell said the U.S. would be the first to recertify the plane and lift the ban since it originally approved the aircraft. He expressed optimism about moving forward.
However, other global leaders and regulators continue expressing concern. The European Cockpit Association, an organization that represents European pilots, questioned the haste to recertify the aircraft and the FAA’s using the same process that previously failed. The group asked how can “a design and regulatory setup that originally failed by approving a flawed aeroplane’s entry into service credibly provide the solution without significant reform?” Countries have the right to determine, individually, when and if they will lift the ban on the MAX. Many have expressed plans to conduct an independent review of the MAX’s fix and may also require Boeing to meet a list of requirements, such as additional pilot training, before considering lifting the ban.
Mike Andrews has written a book 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.