Senate bill targets FAA certification process used for 737 MAX

A blue and white 737 MAX next to a hangar at a Boeing facility.

Bipartisan legislation introduced in the Senate Tuesday would reform the way the Federal Aviation Administration certifies aircraft after investigations found problems with how the Boeing 737 MAX was deemed airworthy before it suffered two mass-casualty crashes.

The Aircraft Safety and Certification Reform Act of 2020 would address a number of issues related to the manufacture of commercial aircraft, most notably incorporating human factors in assessments of pilot responses to cockpit alerts and requiring more FAA oversight of the certification process. 

Boeing (NYSE: BA) designed the MAX with new software designed to compensate for a more aerodynamic design that might cause the aircraft to stall during takeoff, but pilots were not fully briefed about its automated override function. Boeing engineers assumed they would be able to react to warning signals and take control of the plane. Instead, pilots were overwhelmed by too much warning information and couldn’t make a decision in time, safety experts and congressional investigators determined. There is now widespread agreement in the safety community that as planes become more automated and complex, aircraft certifications need to integrate human factors considerations throughout the design process so there is confidence pilots can easily operate the systems.

The legislation requires the FAA to reassess assumptions related to the interface between humans and machines when certifying aircraft, particularly situations involving multiple cockpit alerts and automation. The agency would also have to conduct more research into human factors related to design and certification of aircraft and establish a Center of Excellence that would examine human factors and automation in aviation. 

The bill also instructs the FAA to approve the appointment of Organization Designation Authorization (ODA) unit members and require the FAA to develop guidance for technical qualifications for such members. Under ODA, the FAA can delegate certain certification responsibilities back to a manufacturer. Critics contend that ODA opens up potential conflicts of interest and that in the case of the MAX, the FAA failed to effectively oversee Boeing. The bill also requires the development of best practices for ODAs, including those that would ensure any reports of undue pressure or regulatory coziness are addressed, and prohibits limitations on direct communications between ODA unit members and FAA inspectors.

A report by an FAA review committee early this year said the FAA certification process is effective and argued against big changes to the agency’s use of delegated authority.

“A primary goal of this legislation is to make sure the FAA remains in the driver’s seat when it comes to certification,” Sen. Maria Cantwell, D-Wash., the ranking member of the Commerce, Science and Transportation Committee said in a statement. “This bill makes it clear the FAA is in charge of the certification workforce and the approval process. Additionally, it requires the FAA to act on the National Transportation Safety Board’s recommendations on new safety standards for automation and pilot training.

The Air Safety and Certification Reform Act would also:

  • Require flight testing by a representative sample of international and domestic airline pilots;
  • Direct the FAA to establish an Office of Continuing Education to assist the FAA’s certification engineers and inspectors to keep current with new technologies and concepts;
  • Provide funding authorization for the FAA to hire specialized technical staff with expertise in new and emerging technologies to assist in development of technical standards in certification;
  • Extend existing whistleblower protections for airline employees to employees and contractors of aircraft, engine, and propeller manufacturers;

Aviation regulators grounded the 737 MAX in March 2019 after the two crashes that killed 346 people. It’s not clear if the bill goes far enough to satisfy families of the victims.

The FAA is still reviewing Boeing’s modifications to its augmented flight control system, known as MCAS. Officials have not indicated when they will complete recertification, but FAA Administrator Stephen Dickson is expected to provide an update at a Commerce Committee hearing today.

Boeing shut down 737 MAX production in January because of uncertainty over how long the FAA’s review would take, and then temporarily closed plants because of the coronavirus. The no-fly order for the MAX has severely reduced Boeing’s deliveries and hurt it’s bottom line. Boeing is now producing about one 737 MAX per month, but can’t deliver hundreds of finished planes until the FAA clears the aircraft as safe to operate. 

Even then, Boeing is not likely to produce many of the planes in the near future because airline customers are financially devastated by lost business associated with the coronavirus pandemic and can’t afford to buy, or operate, new aircraft anytime soon.