U.S. Senate Holds Hearing on B737 MAX

Pillsbury Winthrop Shaw Pittman LLP

Pillsbury Winthrop Shaw Pittman LLP

Subcommittee’s probe of FAA’s oversight role in certifying the aircraft is the first step in a larger review—and possible major overhaul—of agency’s aircraft certification process and pilot training standards.


  • The FAA is undergoing audit by the Department of Transportation Inspector General to determine whether processes used by FAA to certify the B737 MAX were adequate.
  • The FAA does not have the workforce or financial resources to assume full responsibility for oversight of aircraft manufacturers; it would need 10,000 additional employees and nearly $2 billion to do so.
  • Non-U.S. regulatory authorities may no longer be willing to rely on aircraft certification decisions made by the FAA, and they may wish to develop their own standards.

On Wednesday, March 27, 2019, U.S. Senator Ted Cruz (R-Texas), chairman of the Senate Subcommittee on Aviation and Space, convened a hearing on “The State of Airline Safety: Federal Oversight of Commercial Aviation” in response to the recent tragedies in Ethiopia and Indonesia and the subsequent grounding of the Boeing 737 MAX aircraft. The panel of government witnesses invited to testify and answer questions included Daniel Elwell, Acting Administrator of the Federal Aviation Administration (FAA), Calvin Scovel, Inspector General of the Department of Transportation (DOT), and Robert Sumwalt, Chairman of the National Transportation Safety Board (NTSB). The subcommittee intends to hold an additional hearing at a later date and plans to include a Boeing representative.

The hearing focused on the following flashpoints:

  • The certification process for the Boeing 737 MAX 8 and questions of agency capture
  • The decision-making process for grounding the Boeing 737 MAX 8
  • The training process for pilots on the emergency protocol for issues with the aircraft’s Maneuvering Characteristics Augmentation System (MCAS)
  • The strain the accidents have placed on trust in the aviation community broadly, and in the FAA as a regulatory body specifically, both from the general flying public and the global aviation industry.

The two fatal crashes that prompted this hearing both occurred outside the U.S. Flight JT610, operated by Indonesia’s Lion Air, crashed into the Java Sea on October 29, 2018, killing 189 people. Flight ET302, operated by Ethiopian Airlines, crashed shortly after take-off on March 10, 2019, killing all 149 passengers and the eight crew members on board. Both planes were the same Boeing model, 737 MAX 8.

Following the Ethiopian Airlines accident, several countries determined it would be prudent to ground the Boeing 737 MAX to ensure passenger safety. The United States refrained from grounding the 737 MAX for three days following the Ethiopian Airlines crash while waiting to receive data. Once Elwell and his team secured data showing that the Ethiopian Airlines flight’s movement was similar to that of the Lion Air crash, Elwell determined that the 737 MAX aircraft should be grounded. The announcement that the U.S. would ground the Boeing 737 MAX was made by the President of the United States on March 13, 2019, although Elwell maintains the decision was made singularly by him. Further investigation into the accident is ongoing, led by Ethiopia with assistance from an NTSB team as well as other countries. The subcommittee held the hearing to determine what, if anything, should be changed regarding the regulatory system to prevent future accidents.

Each of the witnesses was permitted to submit prepared testimony regarding the accidents and the role their organizations will play moving forward to ensure the United States maintains its standing as a leader in aviation safety. Links to their full testimony are available here. Following the testimony, Senators Cruz, Sinema (D-Ariz.), Wicker (R-Miss.), and Cantwell (D-Wash.) delivered opening remarks before questioning the witnesses. The opening remarks generally focused on the need to reestablish trust both with the general flying public and the international community, and the need to address any issues with the certification process.

Current certification process, training, and MCAS malfunction

One of the most frequent lines of questioning directed to the witnesses, and to Elwell specifically, concerned MCAS malfunction and pilot training for MCAS issues. In the wake of the Ethiopian Airlines accident, several news outlets suggested MCAS malfunction in the 737 MAX 8 caused the nose of the aircraft to pitch downward, ultimately leading to the fatal accident. Senators asked several questions about why there was no additional training for MCAS malfunctions. They also wanted to know how the FAA certified the 737 MAX, and whether the FAA retained authority over MCAS. Elwell’s responses to those questions focused on explaining what MCAS does, and how the FAA utilized the type certification process for the 737 MAX.

In response to questions regarding the certification process for the 737 MAX 8, Elwell stated the FAA followed the typical procedure for type certifications that had been developed and refined over the course of several years. According to Elwell, the 737 MAX 8 is a fly-by-wire aircraft, and MCAS was designed to supplement the speed trim system. Elwell indicated the purpose of MCAS is to give the pilot the proper feel with the fly-by-wire yolk, making it feel like the Boeing 737 NG, and that it engages only when the aircraft is in manual mode. Because the MAX and NG were designed to fly similarly, the FAA felt an amended type certificate would be appropriate. Elwell explained that when the FAA issues type certifications, a Flight Standardization Board, composed of pilots from Europe, Canada, and the United States, is responsible for flying the new and old aircraft while monitored by engineers and other professionals to determine if there are meaningful differences between the two models’ handling characteristics. According to Elwell, the Flight Standardization Board determined the NG and the MAX were sufficiently similar to fly; so, the FAA issued an amended type certificate for the Boeing 737 MAX 8. Elwell also confirmed that the FAA retained authority over MCAS so long as it was new technology.

As for questions whether pilots were trained to respond to MCAS malfunctions, Elwell responded that an MCAS malfunction presents itself in the same way as runaway stabilizer trim, a problem with which pilots are already trained to deal. According to Elwell, pilots are trained from day one that when the nose of an aircraft pitches down and the pilot is instructing it to do so, the pilot should respond by completing the runaway trim checklist. Elwell stated pilots are trained to complete the checklist from memory. Elwell said when the pilots of the Ethiopian and Lion Air aircraft noticed that MCAS was feeding them errant information causing the nose of the aircraft to pitch down, they should have responded by immediately completing the runaway trim checklist. Following the Lion Air accident, Elwell said the FAA sent a reminder to pilots reinforcing this protocol. Elwell did note that these accidents took place on airplanes that were not operated by U.S. pilots. Elwell stressed that U.S.-trained pilots know the runaway stabilizer trim procedure; and, when asked about whether the International Civil Aviation Organization (ICAO) ensured that pilots trained elsewhere knew the procedure as well, he responded that ICAO doesn’t typically become involved in that level of specificity with regard to aircraft operation. He did assure the Senators that the FAA is already in the process of assembling information it will bring to the next ICAO meeting, to make sure that other countries are raising the safety bar.

Agency capture and the role of manufacturers in safety certification

The hearing was noticeably more adversarial when discussing Boeing’s role in the certification process. Several senators, perhaps most notably Senator Blumenthal (D-Conn.), questioned whether it is appropriate for Boeing, or any manufacturer, to be involved in safety certification. Senator Markey (D-Mass.) was particularly concerned that Boeing was selling important safety features a la carte. Some wanted to know if the FAA felt pressure from Boeing to get the aircraft certified and in the air. Some senators even suggested the FAA may be suffering from agency capture, which occurs when an agency created to act in the public interest instead advances the commercial or political concerns of groups that dominate the industry or sector it is charged with regulating.

Elwell responded by attempting to clarify Boeing’s role in the certification process. According to Elwell, Boeing participates in the certification process via Organizational Designation Authority (ODA). For amended type certifications, like the one used for the 737 MAX, the FAA determines the aspects of the certification process that can be delegated. Typically, according to Elwell, the FAA delegates only well-known legacy systems to the manufacturer for safety certification. As the process continues, according to Elwell, ODA is amended over the course of the certification as the FAA reviews and certifies the expertise of the manufacturer to assume more delegated authority under very strict review by the FAA. In the case of the 737 MAX, the FAA retained MCAS for review at the beginning of the certification process because it was new. He also pointed out that during the certification process the FAA will sometimes find areas it believes require additional attention, and that the FAA will retain those items for its review. Elwell emphasized—in response to a question about the FAA moving away from simply penalizing manufacturers to a system under which they are allowed to bring themselves into compliance without penalties—that enforcement is one of the tools the FAA employs to ensure that manufacturers comply with FAA regulations.

Some senators were still uncomfortable with the arrangement. Senator Blumenthal went as far as to say the FAA is “doing safety on the cheap” when describing the agency’s practice of involving manufactures in the certification process. During questioning, Elwell responded by saying the concept of ODA has been in use for 60 years and it is part of the fabric of what the FAA has used to keep the skies safe and establish its current stellar safety record. He stated the FAA maintains very strict oversight of everyone participating in ODA, and without it the FAA would need roughly 10,000 more employees and $1.8 billion to assume those responsibilities. He also pointed out that ODA is used around the world and that Europe uses it more frequently than the U.S. As for the questions regarding Boeing selling safety features “a la carte”, Elwell clarified for the senators that the FAA determines which airplane features are safety-critical. All features that the FAA deems safety critical are required to be installed on an aircraft, meaning manufacturers cannot sell these separately at an additional cost.

The FAA will face further scrutiny regarding its certification processes. Scovel indicated that the Department of Transportation is currently auditing the FAA to ensure the FAA is discharging its duty properly. He also pointed out that his office would examine whether the type certification process was appropriate in this case, and whether it is too easy to bypass the need for new type certification by adding features like MCAS to aircraft to make them operate more similarly to old ones. The audit is scheduled to be completed this summer and will cover a wide variety of topics. Some of those topics are directly relevant to issues covered at the hearing such as agency capture, and whether employees at both Boeing and the FAA were inappropriately pressured to push through certifications. Some of the topics that will be covered by the audit are not directly relevant to issues covered at the hearing such as questions about weight and balance issues, and previously used aircraft flying without proper documentation.

The decision to ground Boeing 737 MAX 8

Several senators were concerned that the U.S. lagged other countries in grounding the Boeing 737 MAX following the Ethiopian airlines accident. They were concerned that perhaps in waiting the FAA placed U.S. passengers at risk. They wondered why the U.S. didn’t lead the world in grounding the aircraft. Elwell repeatedly assured senators that the FAA waited to ground the 737 MAX until it received sufficient data to warrant such grounding. Elwell explained the FAA is a data-driven agency, and that the FAA prefers to ground with data because the agency then has a clear sense of what would warrant an ungrounding. According to Elwell, the idea is to wait until the data shows there is a problem, fix the problem, and then get the aircraft back in the air. Elwell and his team specifically looked for data that would show similarities between the Ethiopian Airlines and Lion Air accidents, because similarities in movements could signify there was an issue with the aircraft that would warrant grounding the 737 MAX. He also noted that a few countries made the decision to ground the aircraft before receiving any data, and that those countries reached out to the U.S. asking for data in the days following the Ethiopian Airlines crash. Sumwalt noted his team sent Elwell the data he needed to make the decision to ground the planes as soon as possible. Sumwalt also explained that more information regarding the accident would be forthcoming once the investigation, which is being led by Ethiopia, is completed. According to Elwell, the NTSB is assisting Ethiopia in the investigation and is receiving full cooperation. Elwell also confirmed to senators that although he kept the President and Transportation Secretary Elaine Chao informed, the decision to ground the aircraft was his. He declined to share details of his conversations with the President and Transportation Secretary but did explain he informed the President of his decision to ground the 737 MAX shortly before the President was scheduled to attend an unrelated press event. The President decided to share the information at the event, but that announcement was not pre-planned.


The two questions that hung over the hearing were i) why did these accidents occur; and ii) how can the regulatory system be changed so they do not happen again. The answers to those questions will likely come from the ongoing investigations into the Ethiopian Airlines and Lion Air accidents and the DOT audit of FAA. There have been a few media reports since the hearing citing sources suggesting the automated flight-control system was activated and deactivated before the Ethiopian Airlines accident. But, without the full reports it is difficult to determine what exactly that means for Boeing and regulators moving forward. As for whether the FAA should change the current type certification process, we will have to wait and see. Once the causes of the accidents are determined, both the FAA and the DOT auditors will be able to determine what changes, if any, are necessary to avoid similar future problems.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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