Fork In The Road For Boeing 737 MAX Approval May Mean Longer Delays Or Regulatory Chasm

The families of the victims of the Ethiopian Airlines crash of the Boeing 737 Max jet held a vigil in front of the US Department of Transportation headquarters in Washington, DC on Sept. 10, 2019, the six-month anniversary of the Ethiopian Airlines crash.
The Washington Post/Getty Images

Boeing CEO Dennis Muilenburg acknowledged Wednesday that aviation authorities around the world may not be ready to unground the plane when the U.S. Federal Aviation Administration decides to do so, a move that is anticipated to come sometime this fall. The European Union Aviation Safety Agency could well need until the spring to define what it believes needs to be done to address the 737 MAX’s safety issues, a lag that would pose serious problems for Boeing and airlines. A solution that could speed up the process, if at great expense: deciding to add an additional angle of attack sensor (or two) to the plane.

The rift began March 19, the day when other aviation authorities disregarded the FAA’s determination that the aircraft was still airworthy–despite a need to address the software issue that might have caused two deadly crashes in Indonesia and Ethiopia.

I told the BBC the next morning that there would be no easy way to lift the aircraft grounding, after the world’s regulators decided to go their separate ways. As the months have gone by, and more information has come to light, nothing has changed my opinion. There have only been brambles and potholes, no easy path for regulators to put together a map towards relaunch that would make everyone happy. It was as predictable as it is perhaps inevitable, but it is no less problematic.

We are now at the point in the journey where the regulatory authorities will go their separate ways. They may all still be headed for the same place–it is unlikely for a host of reasons that the aircraft will remain grounded indefinitely in Europe or elsewhere–but they will not get there together or on particularly good terms with each other. 

Of course, EASA has no choice but to require a separate flight test, as was first reported by BloombergTuesday. They answer to the European Commission on this. The plain-spoken European Commissioner for Transport, Violeta Bulc, in her reply to Parliamentary questions this June, laid out four prerequisites to be met to end the grounding of the 737 MAX, including an independent design review of the plane.

Bulc also explained the traditional path to collaborative design approvals that took so many years to develop, based on trust and open dialogue between the FAA and its global peers, but even in that Bulc was careful to point out that it’s not a rubber stamp process. 

“EASA re-certifies as a ‘validation’ the FAA certificate on the basis of the FAA’s findings and an eventual additional testing in accordance with EU technical requirements that may differ from those in the U.S.,” she said. “The FAA does the same for Airbus products.”

Nothing about the 737 MAX would justify a rubber-stamp validation by any regulator.

Though the months have gone by, the basic elements that would allow EASA to carry out an additional independent design review are only now coming together–the FAA has not yet completed its own approvals process. Taking something as complex as a flight control system and testing it for all imaginable scenarios that might have caused these two tragic accidents is not straightforward.

Anyone who has debugged software will point out that results are unpredictable, even with the most carefully crafted or the simplest code. We keep seeing software updates on the non-critical software that we use every day because human behaviour will defy the most active imaginations of any coder. That is in addition to any surprising technical behaviors of the equipment involved.

There may be no way for EASA to give the European Commission 100% assurance that something else unpredictable wouldn't happen on the 737 MAX, no matter how unlikely.

Accident reports aren’t factored-in.

We haven’t had the accident reports completed for either crash, as the FAA has pointed out from the beginning, when they told peers the aircraft was still airworthy. Until more information is available, those who must review and test don’t know what they are really testing for. Changes to equipment, which may require another grounding, could come up years later, once the accident report is complete and the fault of each accident is identified.

What really happened this March was that regulators decided that the risks of a third crash were too difficult to define, and even the remote possibility of another crash too terrible to imagine. The only course of action left, to retain the trust of the flying public, was to ground the aircraft.

It was not really a technical decision, though there was a technical element to it. But that technical element is even now too vague and varied for regulators to say: ‘Here’s the broken part. It’s fixed.’

EASA’s consideration of a third or fourth angle of attack vane may be the fastest and best way to address this conundrum.

Boeing won’t like to hear this, and will strongly disagree, but the whole uncertainty around the 737 MAX re-launch could be addressed by adding one or more redundant angle of attack vanes to the aircraft, as EASA has mentioned.

Because the software interaction is unpredictable, eliminating the likelihood of mixed messages from hardware would be neat and clean.

It would also solve a headache for regulators who would want to be able to have a prescriptive fix to this problem, as any consideration of performance-based approval is tainted by the two crashes. Let me explain the difference here. Regulators have been moving away from issuing prescriptive regulations (Part A must be present, built with XYZ, and tested under protocols 1a-3c) and toward performance-based regulations (the manufacturer has found Part A works based on their own specifications and testing and basically we have no reason to believe otherwise).

The 737 MAX situation not only strains the collaborative relationship between regulators but it also calls into question this path away from prescriptive regulation. That is a problem for everyone involved. There are not enough technical resources at regulators to support extensive prescriptive regulation and there are too many new technologies emerging that everyone is eager to see fly. The wisdom of this performance-based regulatory approach is a separate, ongoing debate.

Airlines and OEMs have already made up their minds that this is the way of the future and resource-strained regulators seem to embrace it. I most often feel like Tevye between one hand and another on the argument, but never seem to get O-rings out of my head. Whatever the case, there is no other hand on the 737 MAX. A relaunch shouldn’t be a leap of faith.

Airlines cannot wait forever, and neither can Boeing, but maybe passengers can.

Boeing CEO Dennis Muilenburg is already laying the groundwork for a phased return to service. “The principle schedule risk continues to be regulator alignment around the world,” Muilenburg said Wednesday at an investor conference, though he’s still holding out hope for the fourth quarter. “A phased ungrounding is a possibility.”

There are practical considerations. Airlines are waiting to relaunch their aircraft and sort out their cancelled flights. Aircraft are aging and getting damaged in the desert heat. Boeing needs to get its production line back up and its backlog out of parking lots here, there, and elsewhere. People’s livelihoods are on the line.

For this reason, nobody particularly wants to drag their feet on a decision.

People’s lives are on the line too, and people’s confidence in aviation is at stake. It’s not only a matter of whether they will be comfortable flying on the 737 MAX again.

Passengers may not care much about which plane they fly, some argue, and will quickly forget to check whether it’s a 737 MAX or not. They just want to get from point A to point B safely, and without having to give it too much thought. That may be true.

But that’s only true because aviation has been able to deliver on the promise of safe travel for decades and cannot afford to go backwards.

What is at stake here is whether the flying public will trust regulators to do the right thing the next time that something goes wrong. And even in an industry as careful as aviation, something will eventually go wrong.

EASA understands that and the FAA does too. The difference is that EASA does not answer to a single government leader, and the leaders EASA does answer to have already made their thoughts known. They aren’t in a rush.

If the FAA approves before others, then we’re exactly back to where we were in March of this year, when it comes to regulatory harmony. Muilenburg’s suggestion that this is sustainable for the industry is short-sighted. An abandonment of trust-based decision-making is not good. The industry already knows that.

What is a realistic re-launch scenario?

Predictions are always problematic, but we went from a predicted summer re-launch to autumn, and now most likely winter, passing through periods of peak demand for U.S. carriers.

It is unrealistic, I believe, to think that the FAA will be done with its review before the end of year. They may be pressured to decide, but they will be weary on their next actions.

EASA has said that it will want to conduct its flight test when Boeing confirms availability, but it will likely be only after all the results are in from the FAA’s own flight test. They will want to be on the look-out for things the FAA may have missed.

EASA will also want enough time for that wholly independent review that the European Commission was promised. While they may have made some progress through information exchange so far, they could take well into next Spring before they’re ready to define their requirements to return the fleet to service. Then those requirements have to be carried out. We’re well through summertime and into next fall.

I would look to this Christmas for a different critical pathway: the point at which Boeing decides that the costs of adding AOA vanes to the 737 MAX, and giving everyone something certain to wrap their heads around, are less than the costs of waiting for everyone to agree.

Not just on the MAX, and not just with Boeing, but on anything at all. Ever again. 

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We have reached a fork in the road toward relaunching the grounded Boeing 737 MAX fleet, one that I feared might be looming from the day this saga began: when we go from a regulatory rift to a regulatory chasm.

Boeing CEO Dennis Muilenburg acknowledged Wednesday that aviation authorities around the world may not be ready to unground the plane when the U.S. Federal Aviation Administration decides to do so, a move that is anticipated to come sometime this fall. The European Union Aviation Safety Agency could well need until the spring to define what it believes needs to be done to address the 737 MAX’s safety issues, a lag that would pose serious problems for Boeing and airlines. A solution that could speed up the process, if at great expense: deciding to add an additional angle of attack sensor (or two) to the plane.

The rift began March 19, the day when other aviation authorities disregarded the FAA’s determination that the aircraft was still airworthy–despite a need to address the software issue that might have caused two deadly crashes in Indonesia and Ethiopia.

I told the BBC the next morning that there would be no easy way to lift the aircraft grounding, after the world’s regulators decided to go their separate ways. As the months have gone by, and more information has come to light, nothing has changed my opinion. There have only been brambles and potholes, no easy path for regulators to put together a map towards relaunch that would make everyone happy. It was as predictable as it is perhaps inevitable, but it is no less problematic.

We are now at the point in the journey where the regulatory authorities will go their separate ways. They may all still be headed for the same place–it is unlikely for a host of reasons that the aircraft will remain grounded indefinitely in Europe or elsewhere–but they will not get there together or on particularly good terms with each other. 

Of course, EASA has no choice but to require a separate flight test, as was first reported by BloombergTuesday. They answer to the European Commission on this. The plain-spoken European Commissioner for Transport, Violeta Bulc, in her reply to Parliamentary questions this June, laid out four prerequisites to be met to end the grounding of the 737 MAX, including an independent design review of the plane.

Bulc also explained the traditional path to collaborative design approvals that took so many years to develop, based on trust and open dialogue between the FAA and its global peers, but even in that Bulc was careful to point out that it’s not a rubber stamp process. 

“EASA re-certifies as a ‘validation’ the FAA certificate on the basis of the FAA’s findings and an eventual additional testing in accordance with EU technical requirements that may differ from those in the U.S.,” she said. “The FAA does the same for Airbus products.”

Nothing about the 737 MAX would justify a rubber-stamp validation by any regulator.

Though the months have gone by, the basic elements that would allow EASA to carry out an additional independent design review are only now coming together–the FAA has not yet completed its own approvals process. Taking something as complex as a flight control system and testing it for all imaginable scenarios that might have caused these two tragic accidents is not straightforward.

Anyone who has debugged software will point out that results are unpredictable, even with the most carefully crafted or the simplest code. We keep seeing software updates on the non-critical software that we use every day because human behaviour will defy the most active imaginations of any coder. That is in addition to any surprising technical behaviors of the equipment involved.

There may be no way for EASA to give the European Commission 100% assurance that something else unpredictable wouldn't happen on the 737 MAX, no matter how unlikely.

Accident reports aren’t factored-in.

We haven’t had the accident reports completed for either crash, as the FAA has pointed out from the beginning, when they told peers the aircraft was still airworthy. Until more information is available, those who must review and test don’t know what they are really testing for. Changes to equipment, which may require another grounding, could come up years later, once the accident report is complete and the fault of each accident is identified.

What really happened this March was that regulators decided that the risks of a third crash were too difficult to define, and even the remote possibility of another crash too terrible to imagine. The only course of action left, to retain the trust of the flying public, was to ground the aircraft.

It was not really a technical decision, though there was a technical element to it. But that technical element is even now too vague and varied for regulators to say: ‘Here’s the broken part. It’s fixed.’

EASA’s consideration of a third or fourth angle of attack vane may be the fastest and best way to address this conundrum.

Boeing won’t like to hear this, and will strongly disagree, but the whole uncertainty around the 737 MAX re-launch could be addressed by adding one or more redundant angle of attack vanes to the aircraft, as EASA has mentioned.

Because the software interaction is unpredictable, eliminating the likelihood of mixed messages from hardware would be neat and clean.

It would also solve a headache for regulators who would want to be able to have a prescriptive fix to this problem, as any consideration of performance-based approval is tainted by the two crashes. Let me explain the difference here. Regulators have been moving away from issuing prescriptive regulations (Part A must be present, built with XYZ, and tested under protocols 1a-3c) and toward performance-based regulations (the manufacturer has found Part A works based on their own specifications and testing and basically we have no reason to believe otherwise).

The 737 MAX situation not only strains the collaborative relationship between regulators but it also calls into question this path away from prescriptive regulation. That is a problem for everyone involved. There are not enough technical resources at regulators to support extensive prescriptive regulation and there are too many new technologies emerging that everyone is eager to see fly. The wisdom of this performance-based regulatory approach is a separate, ongoing debate.

Airlines and OEMs have already made up their minds that this is the way of the future and resource-strained regulators seem to embrace it. I most often feel like Tevye between one hand and another on the argument, but never seem to get O-rings out of my head. Whatever the case, there is no other hand on the 737 MAX. A relaunch shouldn’t be a leap of faith.

Airlines cannot wait forever, and neither can Boeing, but maybe passengers can.

Boeing CEO Dennis Muilenburg is already laying the groundwork for a phased return to service. “The principle schedule risk continues to be regulator alignment around the world,” Muilenburg said Wednesday at an investor conference, though he’s still holding out hope for the fourth quarter. “A phased ungrounding is a possibility.”

There are practical considerations. Airlines are waiting to relaunch their aircraft and sort out their cancelled flights. Aircraft are aging and getting damaged in the desert heat. Boeing needs to get its production line back up and its backlog out of parking lots here, there, and elsewhere. People’s livelihoods are on the line.

For this reason, nobody particularly wants to drag their feet on a decision.

People’s lives are on the line too, and people’s confidence in aviation is at stake. It’s not only a matter of whether they will be comfortable flying on the 737 MAX again.

Passengers may not care much about which plane they fly, some argue, and will quickly forget to check whether it’s a 737 MAX or not. They just want to get from point A to point B safely, and without having to give it too much thought. That may be true.

But that’s only true because aviation has been able to deliver on the promise of safe travel for decades and cannot afford to go backwards.

What is at stake here is whether the flying public will trust regulators to do the right thing the next time that something goes wrong. And even in an industry as careful as aviation, something will eventually go wrong.

EASA understands that and the FAA does too. The difference is that EASA does not answer to a single government leader, and the leaders EASA does answer to have already made their thoughts known. They aren’t in a rush.

If the FAA approves before others, then we’re exactly back to where we were in March of this year, when it comes to regulatory harmony. Muilenburg’s suggestion that this is sustainable for the industry is short-sighted. An abandonment of trust-based decision-making is not good. The industry already knows that.

What is a realistic re-launch scenario?

Predictions are always problematic, but we went from a predicted summer re-launch to autumn, and now most likely winter, passing through periods of peak demand for U.S. carriers.

It is unrealistic, I believe, to think that the FAA will be done with its review before the end of year. They may be pressured to decide, but they will be weary on their next actions.

EASA has said that it will want to conduct its flight test when Boeing confirms availability, but it will likely be only after all the results are in from the FAA’s own flight test. They will want to be on the look-out for things the FAA may have missed.

EASA will also want enough time for that wholly independent review that the European Commission was promised. While they may have made some progress through information exchange so far, they could take well into next Spring before they’re ready to define their requirements to return the fleet to service. Then those requirements have to be carried out. We’re well through summertime and into next fall.

I would look to this Christmas for a different critical pathway: the point at which Boeing decides that the costs of adding AOA vanes to the 737 MAX, and giving everyone something certain to wrap their heads around, are less than the costs of waiting for everyone to agree.

Not just on the MAX, and not just with Boeing, but on anything at all. Ever again. 

Follow me on Twitter or LinkedIn. Check out my website.

I worked in aviation from 1994-2010 before turning my experience to writing about airlines and airports for leading industry and consumer publications in 2013. I’ve spe

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