The Federal Aviation Administration is facing its greatest crisis in years, as multiple investigations seek to understand what went wrong at an agency that spent the past decade amassing what had been considered the best aviation safety record in the world.
That record is now tarnished, after a total of 346 people died since October in two crashes involving the Boeing 737 MAX — a plane the agency approved after allowing the company to conduct much of its own oversight of the certification process, under a regulatory strategy Congress has repeatedly endorsed. And the scrutiny comes as the FAA nears its 15th month of waiting for President Donald Trump to nominate a permanent leader.
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“I’m concerned that the safety culture can be eroding, and sometimes it’s an almost imperceptible movement, but over time,” said John Porcari, a former deputy secretary of transportation.
The twin air disasters in Indonesia and Ethiopia have raised serious questions about how the FAA approved the 737 MAX, including complaints from pilots’ groups that the agency and Boeing had failed to adequately notify pilots about a new software feature that could allow the plane’s computerized controls to steer the aircraft into a fatal dive. Leaders of House and Senate committees have promised to look into what went wrong in the crashes, which have also drawn the scrutiny of the Department of Transportation's inspector general and a federal grand jury in D.C., according to news reports this weekend.
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It's just a year since the FAA was marking what aviation experts have called a remarkable era of safety in the skies, with no U.S. passenger airline fatalities since 2009 and no deaths on commercial passenger jets anywhere in the world in 2017.
But the agency has also faced repeated questions about its close relationship with the businesses it regulates — what former House Transportation Chairman James Oberstar (D-Minn.) called a "a culture of coziness" in 2008. Among other things, Oberstar was incensed that FAA documents referred to airlines as the agency's "customers."
At that time, the FAA was taking criticism for a spate of fuselage cracks on Southwest Airlines jets that whistleblowers said the agency had allowed to fly even though they should have been taken out of service. "The FAA needs to take a real good look at itself," then-Sen. Jay Rockefeller (D-W.Va.) said during a 2008 hearing, calling it "an agency spiraling downward."
Despite those worries, Congress has continued to insist that the FAA hand off part of its regulatory work to airlines and manufacturers — through a program that allows companies like Boeing to designate their own employees, whom FAA certifies to act on its behalf — to sign off on compliance with federal safety standards for a host of items. Lawmakers most recently included such provisions when they reauthorized the FAA last October.
Under the program, the FAA is supposed to retain responsibility for certifying that a company's approval meets federal standards. But DOT's inspector general said in a 2015 audit that the agency didn't know whether it had enough staff in the largest FAA office that oversees this work — the one that deals with Boeing.
In a separate 2012 report, the department's IG found that agency managers' alleged close relationship with Boeing was creating unrest among FAA employees. Some of those workers charged that their supervisors "have not always supported ... employee efforts to hold Boeing accountable," according to a copy of the report that was earlier obtained by Bloomberg.
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The agency has its defenders, however. Those include some of the lawmakers who attended a closed-door FAA briefing last week on the Ethiopia crash and emerged speculating that lax training of foreign airlines' pilots might have been a bigger problem than flaws in the plane.
“There have been more than 50,000 flights in this aircraft in North America and we haven’t had an instance of this,” said Rep. Sam Graves of Missouri, a private pilot and the top Republican on the House Transportation Committee. “But our pilots are trained to different standards."
Christopher Hart, a former chairman of the National Transportation Safety Board, noted on Monday that the FAA has been delegating aircraft-approval duties to companies for decades. And yet, he noted, the United States went nine years without a passenger fatality on a U.S. airline until last spring. “That tells you right there that something must be working very well, and that includes that certification process,” Hart said.
That fatality-free run ended in April after a passenger on a Southwest Airlines flight was partially sucked out a shattered window after the plane's engine shredded in flight.
Hart also expressed misgivings about the involvement of a federal grand jury in the 737 MAX investigation, warning that that, generally, “overzealous criminalization can have very adverse effects on safety improvement programs.”
“Let me put it this way: If someone intentionally does something bad, then I’m first in line for punishment,” Hart said. “But if it’s inadvertent human error because humans make mistakes, then overzealous punishment for mistakes really can undermine safety efforts.”
But Porcari, the former deputy DOT secretary, said it would also be dangerous for a regulatory agency to lack the independence and staffing to stand against the companies it oversees — even a major manufacturing and exporting force like Boeing.
“There’s always a risk that a regulatory agency can be captured by the regulated, and the regulated in this case is America’s No. 1 export,” Porcari said. “The FAA has never had the capacity to do the entire certification process themselves. What’s happened over time is they’re actually doing less and less of it.”
Peter Goelz, a former managing director of NTSB, said that while the FAA’s system of “predominantly nonpunitive oversight has produced an extraordinary period of safety,” the agency needs to “have the resources and the staff to really maintain the final approval.”
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“They can’t designate everything,” said Goelz, who lobbies for clients like Alaska Airlines and the Association of Professional Flight Attendants. “And they have to continue to provide rigorous oversight with the resources they’ve got. But I do think a very real, compelling argument can be made that the FAA does not have enough resources.”
Neither congressional committee with jurisdiction over aviation safety had an update Monday on when hearings could take place. And House Transportation Chairman Peter DeFazio (D-Ore.) wouldn't commit last week to holding hearings specifically on how the FAA certified the Boeing 737 MAX.
Meanwhile, the FAA has been operating under an acting administrator: former airline and aeronautics industry lobbyist Dan Elwell, whom Trump appointed in 2017. Elwell, who's also a former American Airlines pilot, took over the top FAA job early last year after the departure of Obama-era Administrator Michael Huerta, whose tenure included the final approval of the 737 MAX.
Trump's inaction on permanently filling the administrator's seat comes amid multiple reports that he wanted to give the job to John Dunkin, his longtime personal pilot at the Trump Organization. But industry representatives told POLITICO earlier this month that they expect the president to nominate a compromise candidate, retired Delta Air Lines Senior Vice President Steve Dickson — perhaps soon.
It's unclear how the heat focused on the agency may be affecting that timing.
An administrator without the word "acting" in front of his title would be an asset for the agency, said Goelz, the former NTSB official.
“There is no question, having run a federal agency, that the agency’s run better when you have an established, permanent leader,” Goelz said.
