Republicans routinely complain of “oppressive governmental regulation” and Republican political campaigns regularly promise deregulation. I have no doubt whatsoever that the average small businessman or woman is often irritated by the demands upon his or her time caused by regulatory requirements.
It may even seen, to conservatives at least, that governments — especially Democratic administrations — take a certain sadistic pleasure in creating regulations that make life difficult for ordinary people in their business enterprises. On the other hand, a significant number of regulations have been created not to make lives difficult, but to protect them. Thanks to superb reporting by a team of three New York Times journalists (published 7/27/19), we can now understand how a failure of regulation led to the deaths of three hundred and forty-six people.
The Federal Aviation Administration is charged with overseeing the design and construction of airplanes by U.S. companies. The safety of the plane is a primary concern. In 2016 Boeing was rushing to complete its 737 Max passenger airplane, a redesigned, fuel-efficient version of the existing 737 that was intended to compete with a new Airbus model. The Airbus airplane was further along in the design and production process than was Boeing’s and Boeing had to acquire certification of its design from the FAA before it could begin production.
Boeing’s relationship with the FAA had, for decades, been very close. Top FAA officials have shuffled between the agency and the airline industry. The Times reporters suggested that the FAA treated Boeing more like a client than the subject of regulatory scrutiny by an independent, objective government agency.
For years the FAA has delegated many certification tasks to Boeing’s engineers rather than its own. Before 2005 the agency had at least retained the right to choose which of the company’s engineers would take on those tasks; then, at Boeing’s urging, it changed its rules and allowed the company to choose. By 2018, the FAA was allowing Boeing to certify 96% of its own design work.
The FAA also tended to treat Boeing’s timeline for development of the 737 Max as dictating its own operation. When its engineers, in 2016, found a design element that involved a potential threat to rudder cables and recommended remedial re-design, FAA managers rejected their recommendation and allowed the company to make the final decision on the potential threat because doing otherwise would have disrupted Boeing’s plans. A 2017 FAA review panel concluded that Boeing shouldn’t have been allowed to handle the approval of that element because it had “a vested interest in minimizing costs and schedule impact.” By then, however, the plane was in production.
Part of the FAA’s motivation in delegating certification and generally deferring to Boeing was that the agency was under-staffed — probably due to insufficient funding — and it welcomed the opportunity to assign its own engineers to tasks it regarded as more critical. That doesn’t excuse the FAA, but it’s worth noting that pro-business congresses often weaken regulatory agencies by underfunding them.
The FAA approved the 737 Max in 2017 and it went into production. In October of 2018 one of the planes crashed and there was reason to suspect that a particular piece of new software — called MCAS — had been responsible. When the FAA went to its certification files on the plane, it found that it had not independently certified that software and actually knew very little about it.
It turns out that MCAS was initially designed to take over steering control of the airplane briefly under the rare circumstance of a steep turn at high speed, and to make relatively small corrections to the plane’s stabilizers in order to prevent stalling. Later, Boeing decided to allow MCAS to be triggered at low speed as well, upon the input of a single sensor, and to move the plane’s stabilizers substantially more. The FAA was never updated on these changes because it had put MCAS certification entirely in the hands of Boeing and Boeing didn’t think the matter was worth reporting.
After the second 737 Max crash, foreign governments became convinced that MCAS was the most likely cause and grounded the airplane. The U.S. eventually did so as well, and Boeing pledged to re-write the MCAS software.
Not surprisingly, both Boeing and the FAA have defended the rigor of the certification process, but, thanks to the N.Y. Times, it has become evident that the FAA didn’t do its job properly and Boeing, allowed by the FAA to “self-police” its operation and impelled by competitive pressure and fear of adverse effects on its corporate bottom line, chose to put its own welfare ahead of public safety.
When a watchdog makes friends with a thief, property is endangered. When a regulatory agency becomes pals with the industry that it’s meant to regulate, lives are put at risk. Those three hundred and forty-six passengers who died in the two 737 Max crashes had put their trust in the FAA, and it failed them.
Leonard Hitchcock of Pocatello is an alumnus of the University of Iowa and did graduate work at Claremont Graduate University and the University of California, San Diego. He taught philosophy in California and Arizona for 15 years. In 1985, after earning a library degree, he was hired by Idaho State University. He retired from ISU’s Oboler Library in 2006.