Aviation unions and other critics offered dire warnings in 2004 when the Federal Aviation Administration proposed expanding the role of aircraft manufacturers like Boeing in deciding whether their planes were safe to fly: It would be “reckless,” they wrote, would “lower the safety of the flying public” and would lead to “ever increasing air disaster.”
Fifteen years later, the FAA’s strategy of delegating much of its regulatory oversight to hundreds of employees at the companies it oversees may be too entrenched to reverse — even with the intense scrutiny on how Boeing’s troubled 737 MAX jet won approval to fly.
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The FAA has been acting at the direction of Congress, amid pressure from industry players like Boeing to help them compete with foreign rivals by speeding up approvals of new aircraft. The agency maintains that it has used its cooperation with industry to make air travel safer. But government watchdogs have raised red flags about the FAA’s oversight of the program, which puts companies in charge of duties such as doing inspections and vetting engineering designs, with the agency’s supervision.
Concerns about the program are being amplified after 346 people died in two 737 MAX crashes in Indonesia and Ethiopia since October, raising questions about how much agency officials knew about a software feature suspected as a factor.
“There’s no question the certification process was fast-tracked, that Boeing wanted this plane in the air as quickly as possible,” said lobbyist Peter Goelz, a former managing director of the National Transportation Safety Board, the independent federal agency that investigates airline accidents. “And the FAA is not designed for speedy decision-making. That’s not what they do. And I think that is a very legitimate question. Did the … system fail as this plane was rushed to get online?”
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House members said Wednesday that they too want to know more about how the FAA went about approving the 737 MAX — including any problems caused by the practice of delegating some of its regulatory powers.
Similar questions arose in 2013 after a rash of smoke and fire incidents led the FAA to ground another new Boeing plane, the 787 Dreamliner. The NTSB later placed partial blame on Boeing for design flaws in its lithium batteries, and on the FAA for not catching those flaws when it certified the plane.
Congress, though, has repeatedly encouraged the FAA to continue in this direction, ordering only minor changes in the delegation program in its last major aviation legislation last October. According to a 2013 Government Accountability Office report, FAA-approved private employees at that time were performing more than 90 percent of tasks involved in certification.
Advocates for the program have included acting FAA Administrator Dan Elwell, who told Congress in 2012 that pressing forward with the program was the best way to streamline the agency’s approvals. At the time, he worked for the trade group Aerospace Industries Association, of which Boeing is a member.
Some experts expressed skepticism about undoing the program at this point, given the sheer number of industry employees acting as the FAA’s eyes and ears while on private companies’ payrolls.
“We’re talking about replacing thousands, if not tens of thousands, of [industry workers] with FAA personnel,” said John Goglia, an airplane mechanic and former NTSB board member. “Not going to happen.”
FAA officials say the system enhances safety — and in fact, the past decade has been widely accepted as the safest in the history of U.S. air travel, with only one fatality in a domestic passenger airline accident since 2009.
“FAA has never allowed companies to police themselves or self-certify their aircraft,” the agency said in a statement Wednesday. “With strict FAA oversight, delegation extends the rigor of the FAA certification process to other recognized professionals, thereby multiplying the technical expertise focused on assuring an aircraft meets FAA standards.”
“Related to certification of the MAX, FAA experts, including chief scientists, engineers and flight test pilots, conducted in-flight testing of the flight control system,” the agency added — including the software feature that has emerged as a possible factor in the two Boeing crashes.
In a statement this week, Boeing pointed to the “extensive qualification process” for company employees to be designated to act in the FAA’s stead, adding that they must “act independently on behalf of the FAA when performing in this role.”
“These people are essentially the arm of the FAA,” Ray Conner, at the time president and CEO of Boeing’s commercial division, told the House Transportation Committee in a 2015 hearing. “Although they are paid by us, they are within our organization, they are approved individually by the FAA. They carry the FAA authority, in essence. And we take that very, very seriously.”
Rep. Lois Frankel (D-Fla.) pressed Conner on whether Boeing employees are truly independent of the company that pays them. “I still do think there is some power and influence when you are signing the paycheck,” she said.
The FAA says it couldn’t keep up with its regulatory work without shifting part of the load to the private sector, especially given rapid shifts in technology and public expectations for “efficient and agile” oversight.
“Industry is expanding and contracting at a much faster pace than the FAA can currently match or exceed,” the agency said in a 2017 strategy blueprint outlining its plans for even more “collaborative relationships” with industry and less “direct” involvement by regulators “in individual projects.”
The FAA document says the agency "balances the business needs of entities seeking certification approval (applicants) with the public’s expectations for safety." It includes a quote in large type from management guru Peter Drucker, urging people to embrace change: “The greatest danger in times of turbulence is not the turbulence — it is to act with yesterday’s logic.”
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The agency notes that it has been pursuing versions of this approach since at least the 1940s, when it began appointing private “designees” to handle tasks like inspecting aircraft, and later expanded it to cover new duties and entire companies. Congress ordered a major expansion in a 2003 aviation bill, prompting the agency to create a program called “Organization Designation Authorization,” in which companies like Boeing can form self-contained units that act as FAA representatives.
Today, the FAA delegates a host of tasks involving aircraft and the gear on it, ranging from seats to cockpit displays, including the engineering design, manufacturing, operations and maintenance. They also help the agency certify aviation workers, including pilots and mechanics.
Boeing, with more than 130,000 employees, is so huge and complex that as of 2015, the FAA had a 40-person office dedicated to overseeing its part of the ODA program, according to a Transportation Department inspector general report. According to an FAA fact book, as of fiscal 2016, the FAA had 1,571 designees for aircraft certification services.
Agency officials say delegating tasks allows them to stretch the FAA’s resources.
“It does leverage us,” Dorenda Baker, the head of the FAA’s Aircraft Certification Service at the time, told a House hearing two years ago. “We have about 700 engineers, whereas Boeing has approximately 900 … people that are working on our behalf.”
Critics of the post-2003 expansion included the country’s largest air traffic controllers union and another union, the Professional Aviation Safety Specialists, which counts among its members FAA inspectors who oversee the “designees.”
“Allowing the aviation industry to self-regulate in this manner is nothing more than the blatant outsourcing of inspector functions and handing over inherently governmental oversight activities to non-governmental, for-profit entities,” PASS wrote in its 2004 comments to the agency, calling the creation of the ODA program “premature and reckless.”
PASS stands by those criticisms, spokesperson Elizabeth Doherty told POLITICO, saying the FAA is allowing its private-sector partners to perform “increasingly more difficult and critical work.”
Doherty said FAA inspectors need to be in the field more “to strengthen their knowledge of the equipment and aircraft in order to use that expertise to document any violations or deviations and report them accordingly. They certainly should not just be signing off on paperwork submitted by a designee.”
In recent years, the program has grown even more, in part due to urging by an industry eager to compete globally in an age of increasing technological innovation and a Congress unwilling to pony up for additional federal resources.
The pressure on the FAA from Boeing and other manufacturers has been constant, one aviation source with deep knowledge of aircraft certification told POLITICO.
“Boeing really pushed in Congress to put pressure on the FAA — you know how that goes — to put pressure on the FAA to improve and enhance the ODA program,” said the person, who asked to remain anonymous because of ongoing dealings within the industry. The person added that Conner, the Boeing executive, joined in: “In every one of these [advisory committee] meetings we were in, no matter what was on the agenda, his agenda was to get certification moving faster.”
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The person noted that the FAA has also felt broader public pressure to respond more quickly to shifts in technologies, such as a groundswell of support for allowing greater use of gadgets like e-readers and tablets in all stages of flight. The FAA relented in 2014, allowing them to be used in “airplane mode.”
Watchdogs have periodically expressed concern about how thoroughly the FAA is supervising the private employees acting on its behalf, especially when it has to rely on the companies’ technical expertise.
In its 2013 report, the GAO wrote that “designee oversight is lacking,” particularly with the FAA’s newly expanded authority. It specifically cited concerns that “FAA staff have not been able to keep pace with industry changes and, thus, may struggle to understand the aircraft or equipment they are tasked with certificating.”
A 2011 report by the Department of Transportation’s inspector general said it found weaknesses in the FAA’s oversight of the program, such as inconsistencies in how companies select designees, as well as inadequacies in how it trains FAA engineers to manage it. A subsequent inspector general report in 2015 knocked the agency for not having a way to adequately assess whether it has enough staff overseeing the program.
The author of the 2011 report, former assistant inspector general for aviation audits Jeff Guzzetti, said the FAA was responsive to his office’s recommendations. And though the program “probably still has issues,” he said, “in general, the system works.”
“No one is more motivated to have a safe aircraft than the manufacturer, because if one crashes, it could be the end of that manufacturer, it could cost billions of dollars — just like it’s costing Boeing,” Guzzetti said.
