The Atlanta Journal-Constitution
Before crashes, Boeing pushed to undercut oversight
Company helped craft regulatory law more to its liking.
With a few short paragraphs tucked into 463 pages of legislation last year, Boeing scored one of its biggest lobbying wins: a law that undercuts the government’s role in approving the design of new airplanes.
For years, the government had been handing over more responsibility to manufacturers as a way to reduce bureaucracy. But those paragraphs cemented the industry’s power, allowing manufacturers to challenge regulators over safety disputes and making it difficult for the government to usurp companies’ authority.
Although the law applies broadly to the industry, Boeing, the nation’s dominant aerospace manufacturer, is the biggest beneficiary. An examination by The New York Times, based on interviews with more than 50 regulators, industry executives, congressional staff members and lobbyists, as well as drafts of the bill and federal documents, found that Boeing and its allies helped craft the legislation to their liking, shaping the language of the law and overcoming criticism from regulators.
FAA issues warning
In a stark warning as the bill was being written, the Federal Aviation Administration said that it would “not be in the best interest of safety.”
A labor group representing agency inspectors raised concerns that the rules would turn the FAA into a “rubber stamp” that would only be able to intervene after a plane crashed “and people are killed,” according to internal union documents reviewed by The Times.
Weeks after the law was passed, a Boeing 737 Max jet crashed off the coast of Indonesia, killing everyone on board. A second Max crashed in Ethiopia less than five months later, and the plane was grounded.
On both doomed flights, a new automated system on the Max, designed to help avoid stalls, triggered erroneously, sending them into fatal nosedives. Mired in crisis, Boeing is still trying to fix the plane and get it flying again.
In the aftermath, lawmakers have seized on flaws in a regulatory system that cedes control to industry — an issue that put Boeing on the defensive last week when the company’s chief executive, Dennis A. Muilenburg, testified before Congress for the first time since the two crashes.
The FAA never fully analyzed the automated system known as MCAS, while Boeing played down its risks. Late in the plane’s development, Boeing made the system more aggressive, changes that were not submitted in a safety assessment to the agency.
The Max was certified under the old rules. The new law, the FAA Reauthorization Act of 2018, makes it even more difficult for the government to review manufacturers’ work.
In the past, agency officials could decide whether to delegate oversight to the company or to maintain control, depending on the importance of a system or concerns about safety. Now, the agency, at the outset of the development process, has to hand over responsibility for certifying almost every aspect of new planes.
If FAA officials decide a system may compromise safety, the new rules dictate they will need to conduct an investigation or an inspection to make their case before taking back control. If the officials raise concerns, ask for changes or otherwise miss certification deadlines, any disputes are automatically elevated by law to managers at the agency and the company.
The law also creates a committee of mostly aerospace executives to ensure that the regulator is meeting metrics set by the industry, and the law allows companies to make recommendations about the compensation of FAA employees.
“The reauthorization act
mandated regulatory capture,” said Doug Anderson, a former attorney in the agency’s office of chief counsel who reviewed the legislation. “It set the FAA up for being totally deferential to the industry.”
A spokesman for Boeing, Gordon Johndroe, said that the certification process is “part of an effective FAA oversight of safety that permits them to focus on the most important issues that are critical to the safety of flight.” He added that “this authority has been a proven way for decades for government regulators across many industries to prioritize resources and rely on technical experts to maintain quality, safety and integrity.”
Deadlines over safety?
When the legislation was hashed out, the lobbying effort barely registered in the country’s vast political machine. Boeing’s push, and the use of industry language in the crucial paragraphs, was standard amid the deregulatory drive by many businesses. Most of the attention on the bill was focused on a failed Republican effort to privatize the air traffic control system.
Since the two fatal accidents, the law has set off worries in Washington about whether the rules championed by Boeing make company deadlines a priority over passenger safety.
The manufacturer helped author a report that congressional aides used as a reference while writing the law, borrowing language and ideas that had long been used by Boeing. Its executives pressed Michael Huerta, then the head of the FAA, for support, telling him that the regulator’s inefficiency was threatening Boeing’s ability to compete against its chief rival, Airbus of France. They also helped persuade Sen. Maria Cantwell, a Democrat from Washington state, where Boeing has its manufacturing hub, to introduce language that requires the FAA to relinquish control of many parts of the certification process.
“The method by which the FAA certifies aircraft is in need of repair — I don’t think anyone could argue otherwise at this point,” Rep. Rick Larsen, D-Wash., who voted in favor of the legislation, said in an interview. “No matter what we did last year, we need to be pulling some of that back into the public sphere, and take some of it out of the hands of industry.”
Language of the Law
Starting in 2014, Boeing and its trade associations explained that streamlining certification would make American aerospace companies more competitive with overseas rivals.
They argued that FAA employees were interpreting the rules in seemingly arbitrary ways and slowing down the development process, according to seven people involved in the discussions and documents reviewed by The Times.
In a 2015 memo sent to congressional staffers reviewed by The Times, the General Aviation Manufacturers Association, which represents the business jet unit of Boeing, urged lawmakers to “fully implement” the so-called system of delegation. If disputes caused delays, the trade group called for “automatic escalation to appropriate FAA and company management” so issues didn’t languish.
The Aerospace Industries Association, which was headed during part of the lobbying campaign by Muilenburg, echoed those priorities.
Boeing executives made the same pitch to Huerta at industry events and in meetings at the FAA, according to three people with knowledge of the matter.
And they made their case publicly as well, at times citing the company’s safety record.
“There was a consensus that they had good recommendations, and that we ought to put them into writing,” said Matt Bormet, who formerly worked for Larsen. “I heard no complaints about the report.”