The Ethiopian Airlines crash has raised questions over the degree of oversight by the Federal Aviation Administration (FAA) on Boeing’s development of the flight control system for the 737 MAX.
While these questions are valid, it’s important to note that the FAA has been mandated to give more control over to aviation organizations, including manufacturers, over the years. Two Executive Orders signed by President Donald Trump, that require the FAA to cut regulations further, may have tipped the balance by diminishing FAA authority and focusing the agency on working against its principal aim.
There has been a shift in the approach to product certification, towards a collaborative approach that engages the manufacturer as a subject matter expert. The FAA has been tasked with finding greater efficiencies and, as a result, puts trust in manufacturers with established quality systems to make decisions on the parameters for approval for their products.
The aim is to reduce the time required to certify products, by sharing responsibilities for compliance-focused project management, as stated in the FAA and Industry Guide to Certification:
"Early involvement helps to identify and resolve the certification basis more efficiently, e.g. means of compliance, special conditions, etc. This process will result in a more effective use of FAA and Applicant resources with a systems approach to oversight focused on risk based areas. Also, by reducing the time and cost of product certification, safety enhancements through new technology and design innovation can be more rapidly integrated into aviation products."
While this may seem like putting the fox in charge of the henhouse, there is some sense to it. After repeated budgetary struggles, the FAA lacks the resources to hire specialists in all areas or to keep up with the latest technological developments. Turning to industry to explain the function of the product and suggest a method for proving the safety of the product is, by and large, sustainable.
The weakness of this approach becomes apparent, as most systemic failures do, in unforeseen circumstances, such as the current scrutiny into the certification of a flight-control system on the Boeing 737 MAX that is suspected to have played a role in two deadly crashes. It's too soon to say to what degree closer oversight may have addressed any failure modes in the 737 MAX MCAS, but the FAA was acting within its policies and procedures by accepting Boeing's proof of the soundness of the system.
According to the FAA certification guide, the FAA's responsibilities are to "enable applicants to maximize delegation within projects, processes and procedures" and apply "risk based oversight processes." The guide also calls on proof of compliance based on oversight by the applicant, in keeping with their in-house capabilities.
"The FAA accepts the Applicant’s compliance data as compliant without FAA or designee review when the applicant’s capability has been determined competent by the FAA," the guide states.
With this policy in place, the FAA would have no reason to put a tighter standard of proof on Boeing than any other manufacturer and no clear legal authority to impose one. Further, with no way to foresee a higher element of risk in this MCAS system—due to a greater reliance on manufacturer-based experts, instead of FAA experts—the FAA might not have reason to think that tighter oversight would be needed. Risk-based oversight sounds like a good approach until the risks become apparent.
Bottom line, the FAA has been ordered to back off industry and is now being investigated for backing off by the same people who issued the orders. The requirement that the FAA delegate more of its oversight responsibility to industry was imposed on the FAA years ago, but it has more recently intensified with direct orders to undo the regulatory framework developed over many decades, following learnings from deadly accidents.
In 1991, the Secretary of Transportation chartered FAA ARAC (Aviation Rulemaking Advisory Committees) as a way for aviation organizations to take an active role in the drafting of major regulatory issues. ARAC is a cross-functional group that includes aviation companies, organizations, and representatives of the flying public. There are ARAC committee members representing all sectors of industry, from manufacturers to maintenance providers, flyers rights groups to airline groups, pilots unions, and flight attendants unions.
While the core participants in the FAA ARAC are U.S.-based companies and organizations, there is also ad-hoc participation by representatives from partner authorities in Canada and Europe as well as certain manufacturers from outside of the U.S.
The goal of ARAC was to maintain an active dialogue on regulation which would consider the needs of the industry and the requirements of safety, in an effort to make regulations work more effectively.
Shortly after taking office, President Donald Trump signed Executive Order 13771 “Reducing Regulation and Controlling Regulatory Costs” required that the USDOT actively identify and cut back on regulations deemed cumbersome or costly to business, and required the elimination of two or more regulations for every new regulation added. The mandate of Executive Order 13777 “Enforcing Regulatory Reform Agenda” was to start this effort immediately and to engage industry stakeholders and manufacturers “entities significantly affected by its regulations.”
For the FAA, these new EOs created a challenge. Regulations are an entanglement of dependencies—one regulation may reference several others. Deciding which thread to pull, without tearing the fabric, is complex and tedious.
Still, the US DOT mandated that the FAA begin the process of review to reduce regulations. The FAA assigned this task to ARAC, effectively putting the question of what rules to cut and which to eliminate before creating new ones in the hands of a body that includes representatives from manufacturers and airlines.
This move may have tipped the balance, with the FAA forced to put the interests of business ahead of aviation safety. It also sent a message that the FAA’s scope of authority to ensure aviation safety was limited.
ARAC’s efforts to comply with the new EOs issued by President Trump began in April of 2017. By June of 2017, the group had compiled 150 pages with over 300 suggestions of potential regulations that could be pulled from the books for meeting one or more of the criteria: that they were no longer necessary, that they were too cumbersome, or that they were too costly for the aviation industry.
Even among the core U.S. contingent of ARAC, the lists of regulations facing the ax caused confusion and varying degrees of dissent.
Christopher J. Witkowski, Director, Air Safety, Health and Security Department, Association of Flight Attendants–CWA, AFL-CIO issued the strongest dissent in a June 2017 letter to ARAC:
“The reason for AFA opposition to this EO, and the tasks emanating from it, is that the legislative power of the United States is vested in Congress. The deregulatory requirements and their terms in Executive Order 13771 have not been authorized by Congress. We have not found any statute that authorizes the FAA to condition promulgation of a new rule upon repeal of existing rules to offset the costs of the new one. The FAA may be reluctant to suspend activity on an executive order, even one that is outside of the law, but there is no good reason beyond administrative convenience that the ARAC should be pressed to approve elimination of a list of regulatory provisions, given the terms of EO 13771.”
Witkowski also objected to the methodology used to compile the recommendations, pointing to an imbalance in powers represented and the need for transparency on potential conflicts of interest.
“Regardless of the number of majority votes, ARAC generally operates on a consensus-based approach. Even if a simple majority of ARAC members vote in favor of sending the second Report to the FAA, it should not be sent unless there is wider consensus. Due to the significance of this vote on aviation safety deregulation, note should be made in the recordation and all descriptions of this vote as to each voting member’s organizational affiliation, such as whether they represent operators, manufacturers, contractors, airports, crew and other airline workers, or passengers.”
David Supplee, President Directing General Chair, IAMAW, expressed a similar concern succinctly, “I don’t believe it is our duty, as members of this ARAC team, to overturn regulations that were driven by legislation.”
Despite these objections, the work of ARAC in cutting regulations has continued apace. As minutes of a September 2018 meeting reveal, the list of potential regulations to be removed tallies around 90.
“The FAA has gone through the list of 90-ish items and separated them in four categories, which it is discussing with the DOT Regulatory Reform Task Force (RRTF), which meets on a monthly basis. Ms. [Lirio] Liu [Executive Director of the Office of Rulemaking in the Aviation Safety Organization] noted those four categories are: (1) suggestions of deregulatory items that were already in rulemaking; (2) items that would be a good candidates for rulemaking; (3) items that would be a good candidate for ARAC; and (4) items that present a challenge (statutory requirements, political considerations, safety concerns, etc.). Ms. Liu stated there are not many on the list in the last category – items that present a challenge. Ms. Liu said FAA is working with the RRTF regularly to identify items off the list that FAA is going to start rolling into its rulemaking plan…Ms. Liu said the FAA will be working through the list as needed the for the 2-for-1 offsets to balance its regulatory budget over the next few years. She noted it is an active and continuous program.”
