The FAA has been pushing for changes intended to speed approval on critical safety questions and remake regulations using “voluntary consensus standards,” interviews and documents show. That could result in outsourcing policymaking on airplane safety to industry groups outside the public’s view, experts said.
FAA leaders say their approach is based on the premise that companies such as Boeing, and not regulators wielding the stick of enforcement, are best placed to guarantee safety. Rather than focusing on the details of verifying Boeing’s claims that its airplanes are sound, FAA leaders say the agency should be doing more to make sure companies have their own formal systems in place for managing safety — and overseeing those systems ensuring they are working as promised.
Critics inside and outside government say the FAA’s oversight system, which relies heavily on a structure known as Organization Designation Authorization (ODA), presents a fox-guarding-the-henhouse scenario, arguing that the FAA’s history of delegating far-reaching oversight powers essentially gave Boeing an opportunity to cut corners on safety, with deadly consequences. An internal Department of Transportation watchdog has repeatedly reported shortcomings in the FAA’s oversight of its own oversight system.
Boeing, in a statement to The Washington Post, said “the history of commercial airplane development from the 707 to today shows that delegated authority from the FAA has improved the safety of commercial air travel. Even with steadily increasing traffic, the accident rate has consistently decreased.”
FAA officials have repeatedly defended the agency’s delegation of authority, saying the system has helped produce an extraordinary U.S. safety record. Following recommendations for improvements from U.S. and international safety experts, Administrator Stephen Dickson earlier this month said, “We welcome this scrutiny and are confident that our openness to these efforts will further bolster aviation safety worldwide.”
In a statement Monday, the FAA said it “will incorporate any changes that would improve our certification activities.” The agency said it does not lobby Congress, which has “sole authority to authorize the agency’s activities, including establishing the framework of ODA. . . . When Congress passes a measure into law, the FAA is required to comply with that law.”
Failing to catch safety breaches
The FAA gives Boeing employees the job of finding whether the company has met minimum FAA safety standards for its airplanes.
But the agency often does not receive the information it would need from Boeing to make many crucial judgments about safety. That was the conclusion drawn by a group of U.S. and international aviation safety experts that was convened by the FAA and led by Christopher Hart, a former chairman of the National Transportation Safety Board. And in many cases, agency officials don’t ask for critical information, current and former officials said.
Key agency officials lacked critical information about the automated feature on the 737 Max that investigators say contributed to two crashes within five months, one in Indonesia and one in Ethiopia, according to the Hart group.
The feature, known as the Maneuvering Characteristics Augmentation System, or MCAS, repeatedly engaged based on faulty data from a single sensor that investigators say had probably been poorly repaired. The noses of both planes were pushed down over and over as the pilots struggled to regain control.
Under its oversight system, the FAA failed to catch several major safety breaches, according to Indonesian investigators who on Friday issued their final report on the Oct. 29 Lion Air crash in Indonesia that killed 189 people.
The investigation concluded that the pilots’ efforts to save the plane were hampered by the lack of a warning message that would show when two crucial sensors disagreed. That warning message was a standard feature of older 737s and was supposed to work on the Max, but it was mistakenly only activated as part of an optional upgrade.
“The software not having the intended functionality was not detected by Boeing nor the FAA during development and certification of the 737-8 Max,” the investigators wrote.
Boeing was so hungry to create an aircraft that wouldn’t require current 737 pilots to go through expensive retraining that it ran an active company effort to remove information about the MCAS from the Flight Crew Operating Manual, according to congressional officials and copies of Boeing emails.
“Delete MCAS,” Mark Forkner, then Boeing’s chief 737 technical pilot, wrote to an FAA official in 2017 as the plane’s five-year certification was nearing the finish line.
The deletion served Boeing’s commercial interest at the time, which was to minimize the regulations it had to follow and the amount of costly training required of its customers.
Amid hundreds of thousands of pages of records collected so far by investigators is Boeing’s original brochure saying pilots would not need new training, according to Rep. Peter A. DeFazio (D-Ore.), chairman of the House Transportation and Infrastructure Committee, who is leading one of the investigations.
Southwest Airlines was offered a $1-million-per-plane rebate if training was ultimately required, putting pressure on Boeing executives and engineers alike, DeFazio and his investigators confirmed.
An internal Boeing presentation highlighted the conflicts that can occur when company engineers are also serving as representatives of the FAA in the safety certification process, according to the document, which is being examined by the committee. The presentation conceded that “lines are frequently blurred” between the two roles.
DeFazio said he is seeking to understand how the Max could have been approved by the FAA. “The law and the oversight failed,” DeFazio said.
Hart’s group found that Boeing’s information on the ways the 737 Max’s systems might fail — known as a Functional Hazard Assessment — was given to the FAA in summary form.
“Therefore, the FAA does not have the details of the analysis, which are documented in Boeing’s internal” documents, according to the group’s report. Without key details behind Boeing assumptions, the FAA’s “visibility” into important safety information was “incomplete and fragmented.”
One of Boeing’s assumptions was that pilots would “take immediate action” to get the aircraft’s nose up and get the plane leveled out if problems arose. But the pilots’ actions in the crashes were “not consistent” with Boeing’s assumptions, the Hart report said.
One reason the assumptions were off: The MCAS wasn’t in the operating manual.
The FAA group that oversees Boeing, known as the Boeing Aviation Safety Oversight Office, has a staff of 45 people, drastically outnumbered by the 1,500 Boeing employees who were supposed to be working on the FAA’s behalf as part of the oversight system, according to the Hart group report.
But that inequality of resources was by design, part of a years-long effort, in some cases directed by Congress, to give many of the FAA’s oversight responsibilities to Boeing itself. Supporters cited the company’s deep technical expertise and complaints of bureaucratic FAA slowdowns as justification for the shift toward industry.
A month before the Indonesia crash, Congress passed a bipartisan FAA funding bill that included highly technical but potent provisions meant to broaden the realm of safety responsibilities the FAA must delegate to Boeing.
Shortly after the crash, Justice Department criminal investigators began probing whether Boeing provided misleading information about the training required to fly the new jet.
Forkner also raised concerns related to the MCAS in a 2016 instant-message exchange disclosed to the Justice Department in February of this year. The feature had recently been changed so that it would work at lower speeds. Forkner wrote that it was “running rampant” in the simulator and kicking in “like craxy.”
Forkner wrote, “so I basically lied to regulators (unknowingly).”
A fellow technical pilot responded: “it wasn’t a lie, no one told us that was the case.”
A U.S. official, speaking on the condition of anonymity to discuss concerns about the exchange, said getting those instant messages to the FAA closer to when the Lion Air crash happened, rather than this month, “might have been useful in homing in on” the problems with the MCAS before the Ethiopian crash, though it’s unclear whether events would be different.
Instead, the U.S. official added sardonically, the messages were handed over to the Justice Department, “which is always looking out for your aviation safety.”
A Justice Department spokesman declined to comment.
In a 2016 email, Forkner told an FAA official he was “doing a bunch of travelling though the next few months” and that he would be “jedi-mind tricking regulators into accepting the training that I got accepted by FAA etc.”
Forkner moved to Southwest Airlines last year.
In a statement, Boeing said it had not been able to speak to Forkner directly, but “he has stated through his attorney that his comments reflected a reaction to a simulator program that was not functioning properly.”
Plan to roll back existing rules
Despite the oversight failures with the Max, FAA leaders have pressed ahead with plans that would increase industry sway over certification and move the agency toward rolling back existing rules, interviews and documents show.
“Aviation safety within the Federal Aviation Administration will be enhanced by reducing the number of regulations, and focusing on the achievement of performance standards,” according to an agency strategic plan covering 2019 through 2022.
That is a reference to plans being overseen by top FAA officials, several of whom came to the agency from stints representing industry, to overhaul the vast body of federal regulations that set minimum safety standards for large passenger planes.
The regulations were created over decades through at times excruciating levels of safety and engineering analysis and cost-benefit calculation. Many of the regulations grew out of individual crashes. The rules can be time consuming and expensive to follow. But certification experts said the requirements are a big part of the success story of aviation safety in the United States, which has until recently been viewed as a model.
The way the FAA has gauged whether Boeing and other companies meet safety standards has been called into question following the Max crashes, less so the safety regulations themselves.
Boeing and other manufacturers have often chafed at the regulations, arguing that they can be cumbersome without adding to safety, and have lobbied against making them more stringent and for more influence over how they must be followed.
In an internal email Aug. 2, the director of the policy and innovation division of the FAA’s Aircraft Certification Service announced the hiring of a deputy who will make creating “an integrated program for FAA involvement in voluntary consensus standards” one of her primary focuses.
The work represents a major expansion of an effort launched years ago with an overhaul of safety regulations for small planes. Boosters had promised less onerous regulations, with better safety results, though the results are not yet clear. And the stakes for large passenger planes are much higher.
The general concept in that earlier case was that industry would come together in private standard-setting organizations to figure out companies’ preferred methods for meeting existing or changed safety standards for aircraft. The FAA would decide whether to go along with the proposals.
Supporters say the efforts will unleash corporate creativity and make passenger planes even safer.
Detractors warn that opening the door to a wholesale revision of safety regulations for jetliners in an era when regulations are frequently dismantled without careful analysis could prove damaging for safety.
The FAA said that “multiple safety regulations have played key roles in sustaining our record levels of safety in the U.S. We will not remove regulations in a manner that diminishes the FAA’s number one priority of safety. Other regulations may be outdated, duplicative or unnecessarily burdensome, and thereby detract from the cause of safety.”
The agency did not answer a question about which specific regulations may be removed.
The FAA said it is pushing ahead with a “transformation” of its certification operation. Part of that is a major and ongoing reorganization of its offices responsible for certification. Some FAA officials said the new structure is expected to be used to spur the further delegation of oversight authority from the FAA to Boeing as instructed by Congress last year.
As part of its work to “reduce the time for approval decisions” on airplane safety, the FAA plans to gauge success by measuring “Hours per AIR approval,” using the shortened name for the FAA’s Aircraft Certification Service, according to an FAA presentation outlining the changes.
Current and former FAA officials, most of whom requested anonymity to speak freely regarding internal agency disputes, said FAA leaders are pushing to enhance industry sway and further reduce hands-on oversight at precisely the moment the FAA should be reemphasizing such work.
An FAA engineer said agency staff had been briefed in all-hands meetings about the reorganization. He said the changes have been presented as a way to ensure the FAA’s approval process isn’t a “bottleneck” for the industry.
“The reason they keep giving is they need to get certification out of the path of the companies’ ability to complete projects,” said the engineer, who stressed that he was speaking for himself and not on behalf of the agency or his union.
He called the organizational changes and move toward more industry-driven safety standards a “very dangerous path for public safety.”
“It should be obvious to anyone in the U.S. public that it’s a very bad idea if the objective is public safety,” he said.
A second longtime FAA official said the idea that Boeing can effectively police itself under the highly delegated, highly-leveraged oversight system is misguided.
“Having a for-profit company basically given authority to do oversight and certification is just a fundamentally flawed concept,” the official said. “Who’s the gatekeeper that’s going to require a safety upgrade? It sure isn’t going to be Boeing, because they’re driven by profits and costs and customer needs.”
In conversations with agency managers, “it’s pretty consistent their view that there’s not a fundamental flaw with the way we do oversight,” the official added. He said he was glad a top FAA safety official appeared to leave the door open to making some changes recommended by Hart’s group, but also remains concerned about contradictory efforts to further shift oversight responsibilities away from the FAA and to Boeing.
He said there’s “this fundamental belief system” among top FAA officials “that industry is going to produce the highest level of safety,” but he does not share that confidence. “You can criticize Boeing all you want. But, to me, the buck stops with the regulator.”
In a statement following the release of Hart’s report, Dickson said “the accidents in Indonesia and Ethiopia are a somber reminder that the FAA and our international regulatory partners must strive to constantly strengthen aviation safety.”
But Dickson also said at an industry conference last week that one of the themes emerging from reviews of the 737 Max certification process was a need to take “a more holistic approach versus a transactional approach to aircraft certification.” Dickson, a former senior vice president of flight operations for Delta Air Lines, took the helm of the FAA this summer.
Dickson’s reference to the “transactional approach” to certification echoes language the FAA and industry boosters have used to build the case for pulling the FAA further from the front lines of certification.
As a joint FAA-industry guide to certification from 2017 explained, the goal is “a shift of the cultural mind-set away from the traditional ways” in which a company such as Boeing would “show” how it complies with a minimum safety standard, and the FAA would “find” whether it actually does so. That’s the “transaction” at issue. The guide says the eventual goal is for the FAA to accept company data showing it meets safety standards — but to do so without the FAA reviewing the data or having others review it on the FAA’s behalf, as long as the company is deemed “competent.”
Applicants such as Boeing, not the FAA, already play the primary role, FAA leaders argue.
“Something that is not well understood about the certification process is that it is the applicant’s responsibility to ensure that an aircraft conforms to FAA safety regulations,” deputy FAA administrator Daniel Elwell told Congress during a hearing in May on its role certifying the Max.
Boeing defended the FAA’s oversight system, saying safety improvements in recent years are “due in substantial part to the incorporation of new technologies into modern aircraft, the industry-wide collaboration and focus on safety improvement and the increased rigor that delegated authority has introduced in the process,” a company statement said.
Beyond questions of Boeing’s credibility and the future of the FAA’s rigor as a regulator are lingering practical and financial concerns for Boeing, its airline customers and the flying public. The Max appears to still be months away from flying with passengers again.
In a bid to get the Max back in the air, the FAA has agreed with demands from European and other foreign regulators to perform a far-reaching new safety analysis of the Max’s flight controls.
The agency said: “The FAA directed that Boeing conduct an entirely new System Safety Analysis. Foreign regulators agreed.”
It has done so in conjunction with those foreign authorities, incorporating their questions into FAA interactions with Boeing. Instead of largely relying on Boeing’s word, as it did originally, the FAA has required the company to “show its homework” each step of the way, a federal official familiar with the process said.
With the eyes of the world on the FAA, and its credibility, the agency’s typical high-degree of delegation was off the table.
Dickson described tens of thousands of man-hours being put into the review of the Max. “It will have undergone more scrutiny than any machine flying out there today,” Dickson said, “probably anything in history.”