Congress Revisits Role It Gave Boeing to Certify 737 Jet Safety

U.S. lawmakers have turned a critical eye on whether regulators gave Boeing Co. too much sway over the certification of its latest 737 jetliner, which was grounded following two fatal crashes in less than five months.

Yet it was Congress itself — over the objections of some in the Federal Aviation Administration — that enthusiastically pushed to let the planemaker’s own employees approve some designs to keep up with global competitors.

Lawmakers in 2012 overwhelmingly passed and President Barack Obama signed a three-year reauthorization of the FAA’s authority in 2012 that ordered sweeping changes to streamline the agency’s aircraft certification process. It specifically instructed the FAA administrator to consider how to expand the use of “designees,” or company employees deputized with the power to certify the safety of broad swaths of new planes and components on the agency’s behalf.

“The bottom line of it in my opinion was speed,” said Jim Hall, a former chairman of the National Transportation Safety Board. “Boeing wanted to get their products out and they did not want the delays that a thorough certification process sometimes entailed.”

Congress is now scrutinizing the practice after 346 people died in two 737 Max 8 crashes. Investigators have said the first, in Indonesia last October, may be linked to an anti-stall system that malfunctioned, and Ethiopian authorities saw similarities in the March 10 crash in that country.

U.S. officials overseeing aviation safety, including FAA Acting Administrator Daniel Elwell, are scheduled to testify before the Senate Commerce Committee’s aviation panel on Wednesday.

The hearing comes after Democratic lawmakers have pressed Elwell for details about the FAA’s certification of the 737 Max family of jets, including how much work was overseen by Boeing designees. Employees of companies such as Boeing have authority to sign off on many parts of an aircraft’s design, but the FAA audits that work and retains authority over the most safety-critical systems.

Representative Peter DeFazio of Oregon, chairman of the House Transportation and Infrastructure Committee, last week asked the U.S. Transportation Department’s internal watchdog to evaluate whether the FAA’s reliance on corporate designees affected the agency’s certification of the 737 Max’s new anti-stall countermeasures and the FAA’s decision to not revise pilot training and manuals for the Max.

On Friday, DeFazio, who voted against the 2012 re-authorization, called on Boeing and FAA employees to share information about the FAA’s certification program and the 737 Max through a whistle-blower page on the committee’s website.

Senator Dick Durbin of Illinois, the chamber’s No. 2 Democrat, was among the 75 senators who voted in favor of the FAA reauthorization package in 2012.

Since the crashes, he has pushed Elwell for answers about on how much leeway companies have to “self-certify the safety features on their aircraft.”

Greater use of company-paid designees has been spurred in large part by lobbying from manufacturers, including Boeing, who complained that costly delays in winning agency approval for new planes risked putting American manufacturers at a competitive disadvantage to their global peers, Hall said.

In 2015, Boeing was readying a trio of major aircraft redesigns: the 737 Max family, the 787-10 Dreamliner variant and 777X wide-body update. “Each airplane will have to be certified by the FAA, and the large volume of this work poses a significant challenge for the agency,” Ray Conner, then the president of Boeing Commercial Airplanes, said at a 2015 House hearing.

“To meet the challenge, the FAA will need to continue its work to modernize its certification process,” Conner said in his opening statement. He later cited “accelerating the full use” of designees as a key way in which Congress could help the agency achieve that goal.

While the move toward more cooperative interactions with industry was part of a far broader shift at FAA over the past decade or more, the agency was not always happy with Congress’ approach when it came to the delegation process.

Federal agencies like the FAA aren’t allowed to lobby Congress, but the agency has voiced concerns to lawmakers in recent years that there could be consequences from reducing the agency’s authority over the certification process, according to a person familiar with the agency’s actions in recent years. The person wasn’t authorized to speak about the talks with lawmakers and asked not to be named.

The FAA has used designees for decades, but that practice grew after a 2005 agency rule that expanded the scope of certification work they could perform and allowed more companies to operate designee programs. Successive laws directed the FAA to streamline aircraft certification, including increased delegation to designees.

The Government Accountability Office has said the designees perform more than 90 percent of the agency’s aircraft safety certification activities.

Michael Perrone, president of the Professional Aviation Safety Specialists union, has warned for years against unfettered expansion of the program. “In our opinion, it should be nowhere near that. The oversight should be there,” said Perrone, whose union represents FAA inspectors who oversee safety at airlines and manufacturers.

The 737 Max’s roughly five-year certification adhered to the FAA’s standard process and the agency has “never allowed companies to police themselves or self-certify their aircraft” FAA spokesman Gregory Martin said in an email. The agency received no whistle-blower complaints or any other reports alleging pressure to hurry the 737 Max’s approvals, he said.

“With strict FAA oversight, delegation extends the rigor of the FAA certification process to other recognized professionals, thereby multiplying the technical expertise focused on assuring an aircraft meets FAA standards,” Martin said, pointing out that regulators in Canada and Europe also take advantage of the arrangement.

The growth of the role of designees came amid a cultural shift in the U.S. aviation industry since the 1990’s, toward a more cooperative, less punitive approach to safety between the FAA, airlines and manufacturers. Supporters have said the system has worked, citing a powerful piece of evidence: until last year, U.S. commercial aviation had experienced no passenger fatalities since 2009. The streak was broken when a Southwest Airlines passenger died when she was partly sucked through a window that had been blown open after an engine explosion.

Designees have contributed to that enviable safety record, and aren’t going away, said Peter Goelz, a former managing director at the NTSB who is now senior vice president at O’Neill & Associates, a Washington lobbying and public relations firm.

At the same time, Goelz said, the practice is worth examining in light of the 737 Max crashes, particularly how the anti-stall system suspected of being a factor in the Indonesia crash, of a 737 Max operated by Lion Air, was certified.

“The system works great until it doesn’t,” Goelz said. “I think that decision needs to be reviewed, but there’s no way going forward that the FAA cannot rely on designated representatives. It’s simply infeasible.”