In recent months, since the tragic crashes of two Boeing 737-Max aircraft in disparate areas of the globe, both the public and the press have expressed surprise at the finding that the Federal Aviation Administration (“FAA”) was delegating to the aircraft manufacturing industry the principal responsibility for formal certification of aircraft safety. They shouldn’t have been so surprised.
The press consistently blames “agency capture,” the process by which federal agencies purportedly develop cooperative, and even symbiotic, relationships with the industries they are tasked with regulating. In fact, in this instance, it was the United States Congress, in Section 312 of the FAA Modernization and Reform Act of 2012 (“FMRA”), that opened the door to the now questioned delegation of authority over aircraft safety.
Section 312 directs the FAA Administrator to: (1) assess the FAA aircraft certification and approval process; and (2) make recommendations to improve and streamline it. The goal of Section 312, as interpreted by its subject, FAA, was to resolve the dissonance between “an industry that is expanding and contracting faster than FAA can ever respond” and “the expectations of industry, government, and the flying public [that] continue to increase, demanding we do things faster – with greater levels of safety.” Statement of Margaret Gilligan, Associate Administrator for Aviation Safety, FAA, before the Committee on Transportation and Infrastructure, Subcommittee on Aviation, on Building 21st Century Infrastructure for America: State of American Aviation Manufacturing, February 15, 2017, page 2 (“Gilligan Statement”).
FAA has interpreted and implemented Section 312 broadly “to allow applicants that have demonstrated a history of technical competency in certain aspects of a certification program to be allowed to work through certain aspects of a certification program without a specific finding by FAA.” Gilligan Statement, page 2 [emphasis added]. To effectuate this policy, FAA established a committee, the Aviation Rulemaking Committee (“ARC”) which is charged with “conduct[ing] an assessment of the certification and approval process and mak[ing] recommendations to streamline and re-engine the aircraft certification process.” Aircraft Certification Process Review and Reform – Aviation Rulemaking Committee to the FAA, Recommendations on the Assessment of the Certification and Approval Process, May 22, 2012, page vi, conveyed to Congress in “Aircraft Certification Process Review And Reform, Federal Aviation Administration response to FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 312, August 13, 2012.” Not surprisingly, members of the ARC include Boeing Commercial Airplanes and GE Aviation, predominant manufacturers of aircraft and aircraft engines.
The ultimate result of the process outlined above was set forth in the Gilligan Report in 2017. “Refreshing the certification strategy means FAA will take a systems approach, relying on industry’s processes and competencies based on risk management. This minimizes our [FAA] involvement along the certification path to those areas of higher risk.” Gilligan Report, page 2. To do so, FAA will rely upon “a shared, risk-based oversight program with industry.” Gilligan Report, page 3.
In short, FAA’s emphasis, at the instruction of Congress, has been on “trying to ‘right size’ the level of certification rigor, based on the overall risk posed by the new technology, balanced by the potential safety enhancements introduced . . . As we gain more experience in weighing risk and safety value, we will rely more and more on industry to help identify the next technology that will enhance . . . aviation safety and save lives.” Gilligan Report, page 4.
Of course, it is perfectly plausible that the fatal incidents were anomalies in the long record of safety of the aircraft manufacturing industry, and its partner in safety, FAA. Toward that end, for instance, Boeing has created a new software “fix” that will counteract malfunction in the MCAS system, to which the malfunctions are currently attributed, which is currently being tested by American Airlines. Even more hopeful to the hundreds of millions of air passengers that annually populate the national and international airspace, Boeing will no longer impose an additional charge, above and beyond the cost of the aircraft, for safety enhancing features, some of which might have been able to mitigate the impacts of the purported malfunction. It appears equally important, however, that FAA resume its oversight rule in the area of aviation safety. Stay tuned.