Congress on the Brink of Major FAA Oversight Reform in Wake of Boeing 737 MAX Crashes

Dec. 21, 2020

A sweeping reform of how the Federal Aviation Administration (FAA) approves new commercial aircraft is on the brink of passage in Congress, propelled by a rare bipartisan push and public outrage over the Boeing 737 MAX crashes that killed 346.

Democrats and Republicans in U.S. House and Senate committees reached agreement in down-to-the wire negotiations a week ago on a bill tailored to address the FAA's oversight failures in its original certification of the MAX.

The legislation is expected to be incorporated into the massive $1.4 trillion omnibus spending bill that Congress must pass to avoid a government shutdown. That bill, merged with the $900 billion COVID relief package agreed Sunday, could be voted on as early as Monday and would make passage into law all but certain.

According to details of the bill obtained by The Seattle Times, the legislation strengthens the FAA's direct oversight of the Boeing engineers who conduct safety assessments on behalf of the agency.

While the FAA would still delegate to Boeing a great deal of the certification work on future aircraft, new provisions aim to ensure the FAA's safety experts keep a closer eye on how that work proceeds and that Boeing's cost and schedule targets don't dominate decision making.

The bill also requires greater disclosure and analysis of safety-critical systems at the outset of the certification process.

And it creates new penalties for supervisors who exert undue pressure on employees raising safety concerns, establishes new whistleblower protections, and sets up safety reporting mechanisms for FAA's front-line technical staff.

Additionally, the bill authorizes new funding to build up technical expertise at the FAA and to conduct more human factors research into how pilots interact with automated flight control systems.

And it boosts congressional oversight of the FAA, requiring the agency to provide Capitol Hill with reports, briefings and disclosures on how it's meeting the goals laid out in the bill.

Rebalancing how certification work is delegated

Current FAA procedures have been criticized for delegating too much of the certification work to Boeing and for allowing the company's managers too much control over the engineers who do the technical assessments on the FAA's behalf — undermining their independence and giving Boeing the lead in the process while restricting how much the FAA is aware of details.

The proposed legislation, called the Aircraft Certification, Safety, and Accountability Act, rolls back some of the changes made in recent years that shifted the balance of oversight from the FAA toward Boeing.

The measure requires an upfront review of any critical new technology systems before any decision is made to delegate certification of those systems, including scrutiny by an independent panel of experts from other federal agencies such as NASA and the Air Force.

And the agency cannot delegate any oversight work until it has reviewed and validated the underlying assumptions related to pilot reactions to system failures.

These clauses reverse the yearslong trend of increasing delegation to the manufacturer that culminated in the 2018 FAA Reauthorization Act. That law, passed just a month before the first MAX crash of a Lion Air jet in Indonesia in October 2018, mandated maximum delegation of certification work by requiring the FAA to make a case if it wanted any specific piece of the oversight work not to be delegated.

In an interview, Democratic Sen. Maria Cantwell of Washington, who before the MAX crashes was an advocate of more delegation but aggressively pushed the new legislation in the Senate Commerce Committee, said that relentless trend toward industry self-certification is now over.

"We're putting a big stop sign in the road right here," Cantwell said.

The bill provides that the Boeing engineers assigned to work on behalf of the FAA must be approved or removed not by the company, as is the case now, but by the federal agency. And each will have a direct line of communication with an FAA safety inspector acting as an adviser and overseer of the work.

One damning finding of a major investigation into certification of the 737 MAX was that Boeing presented to the FAA only fragmented and partial information about the new flight control system that caused the crashes — the Maneuvering Characteristics Augmentation System (MCAS).

Under the new legislation, any such critical new system design must undergo a comprehensive safety analysis of how it might affect existing systems and the assumptions made about how pilots would react to system failures.

The bill also provides that an individual supervisor at Boeing or another manufacturer who exerts undue pressure on staff doing the certification work, or who fails to disclose safety critical information to the FAA, can be held personally liable and subject to heavy civil penalties.

To avoid FAA decisions on safety being compromised by Boeing's business goals, the bill repeals existing laws allowing FAA employees to receive bonuses or other financial incentives based on meeting manufacturer-driven certification schedules.

And the bill repeals authority for industry-friendly advisory panels to set FAA performance goals that do not prioritize safety.

In response to internal FAA surveys that showed employees feared reprisal for raising safety issues, the bill provides anonymous reporting channels and whistleblower protections for front-line FAA engineers who wish to flag safety concerns.

Many of the detailed provisions in the bill follow the recommendations of various investigations into the MAX crashes and target very specific mistakes in the Boeing jet's development and certification.

For example, one clause directly prohibits any contractual arrangement similar to the one Boeing made with Southwest Airlines, committing to refund the carrier $1 million per plane if its pilots were required to have new flight simulator training for flying the MAX.

Another detail directs the FAA to revoke the license of any pilot who fails to disclose safety critical information on behalf of a manufacturer.

The impetus for this is made plain in a summary of the legislation compiled by Senate staff, which notes in reference to this clause that former Boeing 737 Chief Technical Pilot Mark Forkner "is under federal investigation for intentionally lying to the FAA about the nature of MCAS."

Another provision states that the FAA cannot certify an aircraft without conducting a safety review of the flight crew alerting system and assumptions about how pilots would respond to the cockpit warnings.

If that directive had been in place when the MAX was certified, the FAA might have caught the MCAS design flaws. Instead, Boeing was exempted from meeting the latest crew alerting safety standards, and the assumptions it made about pilot reactions proved catastrophically wrong.

An FAA safety engineer, speaking on condition of anonymity to protect his job, welcomed the provisions in the bill as "a good step forward."

"The tools are here to address a lot of what's gone wrong," he said.

However, he cautioned that in practice much will depend upon the FAA administrator shifting the agency's culture away from a focus on giving industry what it wants, and robustly implementing these new safety protocols.

Cantwell responded to that concern by saying she sees the bill as "a down payment."

"We're going to push the Biden administration to look at further reforms at the FAA beyond this legislation," she said. "We need to make sure we have the right message coming out of the FAA ... to ensure the law we are putting into place is going to be enacted and carried out."

Cantwell said assuring aviation safety is necessary not only to protect the flying public but to protect the future of the airplane manufacturing industry and the jobs it brings to the Pacific Northwest.

She said the bill aims to do that by emphasizing that when safety decisions are made, "the engineers on the ground are in charge."

Heading on a fast track into law

The wording of the FAA reform legislation is expected to be included in the year's final "omnibus bill," according to multiple sources. This is a catchall lawmaking package that's intended to ensure passage of essential legislation before Congress adjourns.

To fast-track the process ahead of adjournment, no amendments are allowed on the omnibus bill. It is voted up or down in total and so, barring some extraordinary political upheaval, whatever makes it into the bill will become law.

The FAA reform deal was driven by Senate Commerce Committee Chair Roger Wicker, R-Miss.; Cantwell, the committee's ranking minority member; House Transportation Committee Chair Peter DeFazio, D-Ore., and Rep. Rick Larsen, D-Everett, chair of the Aviation Subcommittee.

Michael Stumo, father of 24-year-old Samya Rose Stumo who died in the Ethiopian Airlines MAX crash in March 2019, followed the legislative process closely and lobbied relentlessly in person for passage of the FAA reforms.

He said the most important improvements to the certification process that he and the other families of victims had pushed for were retained in the final deal.

Stumo, who was present at the markup session at the end of September that finalized the House version of the bill, noted that DeFazio got "full Republican buy-in" for the proposed reforms from ranking minority member Sam Graves, R-Mo., and his colleagues.

"It was full agreement. There was no dissent," Stumo said. "I stood up and clapped when they all passed it."

Similarly, in the Senate, Cantwell said, conservative Sen. Ted Cruz, R-Texas, worked alongside liberal Sen. Richard Blumenthal, D-Conn., to suggest improvements in the bill.

On Friday, as a prelude to the new legislation, the Republican majority on the Commerce Committee published a scathing investigative report listing "significant lapses in aviation safety oversight and failed leadership in the FAA."

The final recommendation in that report pointedly demands that the FAA "should support legislative reform by implementing law completely while fulfilling the intent of Congress."

The rush to try to get the bill through Congress was the culmination of many months of political maneuvering that followed aggressive investigations into the MAX crashes and testy hearings last year when FAA Administrator Steve Dickson was grilled and criticized by lawmakers in both the House and the Senate.

Even though the House and Senate committees had by this month each agreed on their separate versions of the aircraft certification reforms, soon after the election the prospect of getting a bill into law seemed unlikely as time ran down for this Congress.

While the House had passed its version of the bill, the full Senate had not. The top political priorities were a defense reauthorization package, now passed, and the COVID relief bill.

Over the past weeks, negotiations on the details of an FAA reform bill that could be agreed to between House and Senate went on late into the night, congressional staffers said.

Since the bipartisan deal was finalized between the two committees a week ago, the sponsors have held back from publicly announcing it — fearing a last-minute block. However, in the political horse-trading that has held up the omnibus bill in the last few days, the FAA bill was not an issue.

If, as expected, the text of the new FAA legislation is published Monday as part of the omnibus bill then — barring a veto by President Donald Trump, which would trigger a government shutdown — this landmark reset of the way the FAA conducts airplane certification should become law within days.

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