William Baker

Associate Editor

Loyola University Chicago School of Law, JD 2022

Boeing’s fleet of 737 Max jets remain grounded in the wake of two crashes that occurred shortly after takeoff and within five months of each other. Both crashes killed all passengers on board, a total of 346 people, and the jets’ black box data recorders have revealed many similarities between the two incidents. Both jets were equipped with Boeing’s newly implemented stall-prevention software called the Maneuvering Characteristics Augmentation System (MCAS). The system automatically adjusts the pitch of the aircraft, but it malfunctioned in both crashes when MCAS seized control from the pilots and plunged the jets into the ground. The Federal Aviation Administration (FAA) has not yet announced when these jets will be allowed to fly again, although test flights have recently been conducted.

Exploitation of regulatory loopholes

While new aircraft designs must adhere to the FAA’s most recent regulatory amendments, the 737 Max exploited a loophole in which its previously approved design could remain certified under the Changed Product Rule. This rule requires that the FAA review and approve all major changes to an aircraft or aircraft engine before deeming it airworthy. However, variants of the 737 have been in service since 1967 and therefore, some of the regulatory amendments in effect at the time of original certification remained in effect when the 737 Max was designed. The shortcomings of the Changed Product Rule resulted in an inadequate assessment as to how larger, heavier engines placed in a more forward position on the wings would impact the flight crew’s ability to control the aircraft. The FAA has noted that a more comprehensive, top-down certification process is needed in order to establish compliance regarding all design changes and how they impact existing flight systems.

Toxic corporate culture

The crisis has also uncovered major cracks within Boeing’s corporate culture. Former Boeing engineers have voiced concerns over the company’s prioritization of profit at the expense of safety. Prior to the crashes, Boeing denied requests for data from the EU’s Aviation Safety Agency upon discovering flaws in the Max’s auto-throttle system. Boeing officials instructed engineers to withhold the information under guarantees that Boeing “would fix the issue ourselves.” Safety issues became such a point of contention that employees feared they would lose their jobs upon voicing their concerns.

Nevertheless, congressional investigators obtained internal email correspondence predating the two crashes, in which Boeing employees described the 737 Max as “designed by clowns, who are supervised by monkeys,” and expressed doubts as to whether they would let a loved one fly on the model. More alarmingly, these internal communications revealed that Boeing employees knew the FAA wouldn’t understand MCAS in great enough detail so as to require safety adjustments or an expansion of simulator training requirements.

The FAA’s role

The FAA delegated a substantial portion of the safety certification process to Boeing, as concluded by an independent task force commissioned by the FAA. In particular, the FAA allowed Boeing employees to evaluate MCAS themselves, and only two FAA employees, neither of whom possessed a mastery of the highly complex system, were involved in the subsequent technical review. It is likely that the FAA employees would have subjected the MCAS software to greater scrutiny had the FAA been well versed in the software’s technical details.

The 737 Max crisis illustrates what can happen when regulatory agencies entrust a regulated, private entity with a high degree of authority and discretion. As a result, the regulated entity may withhold crucial information from regulators due to a preoccupation with profit generation. Looser regulations typically lead to cost savings because the manufacturer doesn’t have to invest nearly as much into expensive modifications. Such was the case with Boeing’s 737 Max series, in which Boeing officials downplayed the need for pilots to undergo extensive simulator training, which would have negatively affected sales and increased costs for airlines purchasing the model.

Boeing’s 737 Max failure underscores the need to ensure that federal regulators have the wherewithal to independently monitor all aspects of a product, not least one as technologically advanced as passenger aircraft. In Boeing’s case, the manufacturer prioritized profit over safety in order to remain competitive with its rival, Airbus. However, it is hard to remain competitive when the newly built Max fleet has been grounded indefinitely due to a lack of airworthiness. Compliance is key in the aviation industry.