In a June 19, 2019 hearing of the United States House of Representatives Subcommittee on Aviation, representatives of pilots’ organizations directly involved in, and affected by, the structural issues identified in the Boeing’s 737 Max aircraft, that caused the tragic deaths of 346 passengers, called The Boeing Company (“Boeing”), and its federal regulatory partner, the Federal Aviation Administration (“FAA”) to account in no uncertain terms.

Daniel Carey, a 35 year career American Airlines Captain, and President of the Allied Pilots Association (“APA”), testified as to what pilots regard as the fundamental issues with oversight by FAA.

Carey opines that the disasters arose from two fundamental problems: (1) the addition of the Maneuvering Characteristics Augmentation System (“MCAS”) without additional training, or even notification to pilots of its existence; and (2) failure of the requisite oversight by FAA. First, in an effort “to minimize the operating costs to Boeings customers by allowing the Max to be certified by FAA as a 737,” rather than requiring additional procedures that might be required for a substantial variation from the original 737 design, “this lead Boeing’s engineers to add the MCAS system.” Also according to Carey, many additional mistakes were subsequently made by Boeing engineers.

These include, but are not limited to, the failure to include the normal redundancy in aircraft systems by designating MCAS as a “federated” not “integrated” system, thus allowing the use of a single altitude sensor to govern the system. Consequently, as a single “point of failure design,” this meant that if the single sensor failed, rescue was “completely dependent on the Captain and First Officer of the aircraft.”

In addition, and despite this dependence on human intervention, “Boeing failed to disclose the existence of MCAS to the pilot community.” Finally, but not least important, was the total absence of “robust pilot training” in the event MCAS failed.

Exacerbating these failures, according to Carey, was the dubious nature of FAA regulatory review. Carey is dubious as to: (1) whether FAA is “sufficiently independent of manufacturers so as to provide a legitimately rigorous audit of manufacturers’ design and engineering;” (2) whether a “federated” system, as MCAS was originally denominated, “which may lead to an unrecoverable event,” should ever be certified by FAA; and (3) whether “FAA is sufficiently equipped to ensure that pilot training protocols are vigorous and robust as aircraft are becoming more technologically sophisticated.”

The ultimate incentive to the pilots’ comments apparently occurred in a meeting with FAA on April 12, 2019. At that meeting, “FAA officials highlighted a critical checklist that Boeing directed pilots to use to recover the Max after the MCAS misfire. The FAA disclosed, however, that this critical checklist “had not been validated since 1967, although the 737 aircraft has been dramatically modified many times since. Pilots, therefore, question whether an FAA aircraft certification dating back decades “such as a 737 designation from 1967, should have a date for termination or sunset.”

The pilots’ questions have provided the basis for those to be directed by Congress to FAA in the exercise of Congressional oversight responsibilities. It can be expected that Congress will draw back on its recently stated liberalization of federal regulation, Aviation Modernization and Reform Act of 2012, § 312, in favor of a reinstatement of regulatory agencies involvement in the development, and ultimate approval, of final aircraft designs. Stay tuned for the next chapter in this ongoing saga.