‘Fox guarding the henhouse’ mentality
day-to-day regulatory work to Boeing allows the FAA to focus its limited resources on the most critical safety work, taps into existing industry technical expertise at a time when airliners are becoming increasingly complex, and allows Boeing in particular to bring out new planes faster at a time of intense global competition with its European rival Airbus.
But over the years, government watchdogs and unions have raised flags, warnings that are getting renewed attention in light of the two Boeing crashes.
It is not clear what role Boeing employees played in vetting the automated flight-control system, known as MCAS, that appears to have played a central role in the crash of Lion Air Flight 610 in October, and may have played a role in the crash of Ethiopian Airlines Flight 302 this month as well. The Seattle Times reported last week that a safety analysis for MCAS was delegated to Boeing, and that the company produced a document that had significant flaws.
Transportation Secretary Elaine Chao has requested that her department’s inspector general conduct an audit of how the 737 Max 8, the model involved in both deadly crashes, was certified. Lawmakers have asked the inspector general to examine the role that the delegation program played in the Max’s certification. And the Justice Department is investigating the plane’s development, a person briefed on the inquiry said.
Under the delegation program, “the staff responsible for regulating aircraft safety are answerable to the manufacturers who profit from cutting corners, not the American people who may be put at risk,” Sen. Richard Blumenthal, D-Conn., wrote to the inspector general last week.
In testimony prepared for the Senate hearing on Wednesday, the FAA’s acting administrator, Daniel K. Elwell, described the system of delegating authority outside his agency as “critical to the success and effectiveness of the certification process.”
“This is not self-certification; the FAA retains strict oversight authority,” Elwell said in the prepared remarks.
In the case of the 737 Max, Elwell said that the FAA was “directly involved” in reviewing the safety of MCAS. The agency’s engineers and flight test pilots participated in evaluating the system, he said, calling the certification process for the plane “detailed and thorough.”
In draft testimony for the Senate hearing, the Transportation Department’s inspector general, Calvin L. Scovel III, said the FAA was revamping how it supervised manufacturers that performed work on its behalf. He said the FAA planned by July “to introduce a new process that represents a significant change in its oversight approach.”
The practice of delegating authority from regulators to plane makers stretches back decades. For the Boeing 747400, approved in 1989 as an update to the iconic jumbo jet, the FAA estimated that it had delegated 95 percent of the certification work, according to a 1993 report from the agency now known as the Government Accountability Office.
The report raised concerns that the FAA had turned over responsibility for critical work, including “analyses of hypothetical failures of systems.”
The FAA overhauled its approach to delegation in 2005, creating a new program that expanded the authority given to manufacturers to help certify their own products. Under the new program, called Organization Designation Authorization, companies like Boeing can choose their own employees to work on behalf of the FAA.
When the FAA moved to create the program, Boeing called it “an important building block toward increased delegation throughout the aviation industry.”
But not everyone in aviation circles shared that positive view. The National Air Traffic Controllers Association, whose members include FAA certification employees, said at the time that the FAA’s new approach “provides less specific and technical FAA oversight and therefore would in time lower the safety of the flying public.”
Another FAA union now known as the Professional Aviation Safety Specialists said it would oppose “any system that allows industry to self-regulate oversight via the honor system.” The union wrote that the FAA’s “blatant outsourcing” was “reckless” and would “actually compromise public air safety, not enhance it.”
The FAA was “rushing to hand off their oversight responsibilities to industry and virtually establishing a ‘fox guarding the henhouse’ mentality,” the union wrote.
The delegation program has come under scrutiny on multiple occasions since then.
One factor in the debate is the FAA’s budget. If Congress wanted the government to handle more certification work without slowing down the approval of new planes, lawmakers would most likely need to drastically increase funding for the FAA so it could expand its staff. Instead, Congress has encouraged the FAA to delegate more certification work to manufacturers.
A report accompanying a spending bill last year said that utilizing the FAA’s program for delegating authority to manufacturers was “key to improving the effectiveness and efficiency of product certification.”
“Ideally, if resources are no constraint, you would want the regulator to be doing it all,” said Christopher A. Hart, a former FAA official and National Transportation Safety Board chairman. “But this isn’t the ideal world and resources are constrained.”
Hart cited the stellar safety record of commercial air travel in the United States in recent years as evidence of the delegation system’s success. “If it’s properly done,” he said, “it can equate to the safety of not delegating.”