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

Summary:
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

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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).

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

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:

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

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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