A sweeping piece of aviation legislation passed last week by the U.S. House includes an obscure amendment that allows airliners to continue flying with partial safety upgrades, even though they don’t fully meet current safety standards.
As passed by the House on July 20, the FAA Reauthorization Act allows the Federal Aviation Administration to approve certain interim design changes without taking public input. Boeing and other airplane manufacturers lobbied for the change.
As a safeguard, the amendment requires the FAA to set a deadline “by which all noncompliant conditions related to the design change must be addressed.”
Aerospace industry officials who pushed for the amendment say it’s in the interests of the flying public to deploy safety upgrades faster.
But some critics argue the proposed fast-track approval could degrade the level of scrutiny of safety-related changes by shortening the FAA review process and not allowing public and industry experts to review changes before they are approved.
Michael Stumo, a sharp critic of Boeing’s safety culture ever since his 24-year-old daughter Samya Rose Stumo died in the 2019 crash of an Ethiopian Airlines 737 MAX, said the new approval process lacks transparency and invites waivers of design changes behind closed doors.
“The exclusive reason for this is to avoid the public and anyone else having a say or seeing what’s going on,” said Stumo. “They just want to make it secret.”
And while the new fast-track process should add some near-term safety enhancements, the concern is that this could allow Boeing to delay costly longer-term upgrades needed to bring the jets fully into compliance with regulations.
Former FAA safety engineer Mike Dostert, who provided his analysis of the proposed amendment to congressional staff, said the speedier approval process in the FAA bill “is not about safety; it’s about reducing costs.”
In an effort to address concerns, House Transportation Committee staff added, with unanimous bipartisan support, a series of safeguards before the amendment was finalized, including the requirement that the FAA must set deadlines by which all safety standards are met.
The Senate considers the FAA Reauthorization Act next, and Congress is targeting it to become law in September when the agency’s current authorization expires.
Peter Prowitt, chief operating officer at the Aerospace Industries Association, said that, when an extensive safety redesign is required, the goal is to deploy some interim improvements quickly rather than waiting for the entire design package to be ready.
“This is a way for us to accelerate the implementation of safety measures without having to wait for a more extended process,” Prowitt said. “The FAA administrator would have the discretion to decide.”
Prowitt, whose association represents airplane, jet engine and component manufacturers, also noted a U.S. competitiveness rationale: A similar accelerated approval process for interim design changes is already available to Airbus from Europe’s FAA counterpart, the European Union Aviation Safety Agency, or EASA.
Hassan Shahidi, CEO of the Flight Safety Foundation, a well-regarded organization focused on safety advocacy, said the new process can be acceptable as long as the FAA is required to conduct a complete risk assessment.
He added that the setting of a deadline to fix outstanding noncompliance issues is also an essential element, even if these are not immediate safety risks.
“There may be a number of compliance issues and all of them need to have a deadline, based on risk,” Shahidi said.
Under the comparable European fast-track process, EASA requires such a timetable.
Dostert, the former FAA safety engineer, said the addition of the deadline is “a real positive improvement” over what Boeing and the industry asked for. Still, he remains wary that the inserted safeguards may not be enforceable in practice.
“Where are the consequences if they don’t meet the deadline?” he asked.
Airliners that don’t comply with FAA standards
At the root of the request for this amendment is a perhaps startling fact: Although Boeing commercial jetliners are certified before entering service as meeting all FAA safety regulations, the reality is that the planes in the sky do not.
Both the 737 MAX and the 787 Dreamliner, Boeing’s two most important jets, do not fully comply with FAA safety standards.
For example, the 787 does not meet the lightning protection standard designed to prevent a wing fuel tank explosion that the FAA stipulated as a special condition when the largely carbon composite jet was certified to carry passengers.
Though the jet has a very effective system to reduce flammability in the wing tank — to reduce flammable vapor, inert gas is pumped in as fuel is used up during flight — it does not have the required level of protection against ignition sources inside the wing.
And the 737 MAX has approaching 200 noncompliant systems, according to people familiar with the details.
“The certification of a new aircraft is based on the most complete and reliable information available at the time,” the FAA explained in a statement. “All aircraft — regardless of the make or model — experience issues after they are certified.”
“It is important to note that not every noncompliance is an unsafe condition,” the FAA statement adds.
The FAA said that whether it’s a discovery of a new problem or simply that an airplane manufacturer has identified a design change that can improve safety, it “takes appropriate, risk-based action … to ensure those issues are addressed.”
Any urgent threat to flight safety is dealt with through an Emergency Airworthiness Directive, mandating the airlines take immediate action.
The AIA’s Prowitt said safety is not a fixed, accomplished fact in the aerospace industry, but a “never-ending objective” that requires constant improvement.
The Flight Safety Foundation’s Shahidi likens this to problems discovered in autos after they are delivered to customers. Some are serious enough to trigger immediate recalls, while others can be fixed on a more extended schedule.
“There are always noncompliance issues that come up,” he said, and all must be reported to the regulator.
The FAA is aware of the below-standard lightning protection on the 787’s wing fuel tank but assesses it as not an immediate safety risk.
In March 2019, against the opposition of front-line FAA safety engineers, the agency’s management let Boeing remove certain elements of the jet’s lightning protection on the wings that were proving costly for airlines to maintain.
In October that year, the FAA demanded that Boeing perform a detailed assessment of “the overall fuel tank explosion risk from lightning-related ignition sources” for all 787 aircraft.
Boeing said it completed that risk assessment in 2021, “showing no safety issue.” Last year, the FAA accepted this assessment.
Nevertheless, even with no immediate safety issue, there is a longer-term risk and Boeing is obliged to bring its jets into full compliance with current safety standards.
Critics complain that, with no FAA mandate to move expeditiously, Boeing too often allows its planes to continue flying indefinitely without such fixes.
“There is continuing noncompliance in many areas as Boeing slow-walks getting to full compliance for years. And the FAA does not cause them to finally fix by a date certain,” said Stumo. He added that the proposed amendment could enable “continuing noncompliance.”
Addressing risks after serious incidents
Former FAA safety engineer Dostert cites how the regulator, after a 2016 uncontained engine blowout on a Boeing 737NG jet operated by Southwest, delayed ordering inspections on similar planes after assurances from engine-maker CFM that the incident was an anomaly.
FAA safety regulations require that an engine be designed to contain metal pieces in the event of a broken fan blade blowout. When it happened again on another Southwest jet in 2018, metal shrapnel smashed open a cabin window and killed a passenger.
“We are allowing Boeing to produce products with a bunch of noncompliances. Some are trivial. But a lot become an issue over time,” said Dostert.
The aftermath of the fatal Southwest 737 incident illustrates how, even when a jet doesn’t comply with an important safety standard, the FAA tries to address the risk while allowing the affected jets to continue to fly.
After the 2018 accident, the FAA imposed strict engine maintenance inspection intervals to find any cracked fan blades. That ensured there was no immediate risk of a repetition.
Meanwhile, Boeing got a time-limited exemption to keep flying the 737NG model while engineers worked to strengthen the engine casing.
Just last week, Boeing confirmed in a filing with the FAA that its redesign of the engine casing is ready. At the same time, it asked for a 17-month extension to work on details that will prevent maintenance mechanics leaving the engine access doors unlatched.
In lobbying for the new fast-track process to be included in the FAA bill, Boeing cited the similar case of three fan blade failures on 777s with Pratt & Whitney engines — the last of which rained engine parts on a Denver suburb in 2021.
After the Denver incident, 777s with similar engines were grounded. Boeing developed an initial design to strengthen the casing on the engine, but needed more time to develop a comprehensive redesign.
In 2022, the FAA granted Boeing a five-year exemption to deploy the initial changes and unground the jets before the more complete solution.
Boeing working on 787 lightning protection
Regarding the 787 and 737 MAX not complying fully with FAA standards, Boeing made a senior engineering leader available to answer questions on condition that he not be named.
He said lightning protection on the fuel tanks in the 787’s carbon composite wings is “one of the most challenging problems that we face in engineering today within commercial airplanes.”
“We’ve openly admitted that there’s areas that we could have done better,” the senior engineer said. “We fully intend on restoring full compliance. … We’re on a path to restore compliance [with the lightning protection standard] in 2024.”
Once that is achieved, he said, the same state-of-the-art lightning protection will go into the 777X, a jet that is not yet certified and features Boeing’s largest carbon composite wing.
In the meantime, in an October submission to the FAA, Boeing petitioned the FAA for an exemption to specific wing tank fire safety rules for the 787. Last month, the FAA agreed.
What prompted Boeing to request this specific exemption was not a safety issue, but an economic one: the paint on the 787 wing kept peeling off.
This alarmed passengers looking out the cabin windows and was costly for the airlines to repair.
Because the paint thickness on the wing is part of the lightning protection calculus, any change to it could be made only if all related lightning protection features inside the wing complied with the FAA standard set during the 787’s certification.
Boeing was obliged to seek the exemption because, as of now, its ignition prevention measures do not. Without the exemption, the 787s couldn’t have continued to fly.
To justify the exemption, Boeing added two ignition prevention features inside the wing: installing insulating cap seals on a subset of wing fasteners and sealant on the edges of certain wing skin stiffening rods.
Metal fasteners provide a potential path for a lightning strike to penetrate the wing skin. And a strike to the carbon composite poses a potential ignition threat at exposed edges; internal FAA documents obtained via a Freedom of Information Act request show that Boeing in 2019 identified 680 such “edge glow” locations within a 787’s wings.
Yet those two safety improvements still don’t bring the 787 wing up to the required FAA standard.
In lobbying Congress, Boeing offered this exemption as an example of how the new fast-track process might be used to allow safety improvements now while it works toward full compliance.
On the 737 MAX, the list of noncompliance issues includes the crew alerting system that warns pilots when something goes wrong in flight. For that system, the FAA and Congress have granted Boeing a permanent exemption from full compliance, conditional on installation of a couple of safety improvements.
The Boeing senior engineer noted the company is adding those upgrades on the MAX 10, which is not yet certified, and then they will be retrofitted to the earlier MAX models already flying.
“Noncompliances, we absolutely have to close them out,” he said. “We’ve made great progress on the MAX. That 200 number is a little dated. We’ll get even more done once we get [certification] of the MAX 7 and the MAX 10 behind us.”
Faster, but still safe?
But given there is an existing exemption process, why does Boeing want a new one?
The industry maintains that the public notice and comment period required to get an exemption takes a lot of time. If the amendment eventually passes into law, it will allow Boeing a quicker alternative.
Provided the change delivers some “incremental safety improvement” — such as those two ignition prevention features — the fast-track process established by the amendment would allow the FAA administrator to grant a waiver without public comment.
Hence, Stumo’s complaint about lack of transparency.
A June 2016 internal FAA white paper written by Doug Anderson, who was then the manager of the FAA’s airworthiness law branch in D.C., pointed out a spike in noncompliances in the 787 and 747 aircraft.
He wrote that these were “most likely are attributable in part to [Boeing’s] commercial interest in developing safe (perhaps minimally safe) but potentially noncompliant and under-substantiated designs, because fully compliant and substantiated designs require more time and resources.”
He called for manufacturers like Boeing to be required “to perform proper root cause analyses of non-compliances and implement corrective action.”
Two people familiar with the House deliberations said the language inserted in the amendment adding conditions that must be met before this quick approval is granted — including the deadline for complete compliance — was done to try to ensure the process is not misused.
The FAA declined to comment on pending legislation.
However an agency spokesperson in an emailed statement said that, whatever the timeline for approval may be, the agency will use its “established, safety-based process for evaluating all proposed design changes.”