Guest post from two who know aviation well
FAA Safety Panel
The Endless Aircraft Re-Certification Loop: Passenger and Airline Advice to the Rescue?
By Suzette Matthews, J.D. and Frank L. Frisbie, P.E
To the outside observer, approval to resume flying Boeing B737 MAX appears mired in an endless loop of fixes, unintended effects, and newly discovered issues, and application of redundant backups threaten to proliferate like a funhouse hall of mirrors. And the situation may yet get worse. Reportedly, FAA is ending its delegation to Boeing of authority to perform routine certifications, and extending its own observations “holistically” back throughout the entire manufacturing process. Meanwhile foreign regulators are going to stop relying on FAA, and instead do their own certification of foreign manufactured aircraft. It’s not clear how Boeing and FAA will break out of this cycle. What is clear however is that the prolonged grounding is levying significant costs on everyone involved—Boeing, airlines, and not least of all the traveling public who doubtless will face shortages of available airline seats and higher ticket prices. It also casting a long shadow over the future of certification.
All of which begs the question, why have safety approval situations like these become so intractable? Perhaps one reason is that, when it comes to safety, FAA’s legal authority–and public expectations–drive it beyond of the realm of the reasonable, toward the impossibility of perfection. US Code § 44701 requires that, when prescribing a regulation or standard, FAA is “to consider the duty of an airline to provide service with the highest possible degree of safety in the public interest” [emphasis added.] As a result, although as a practical matter FAA approves operations demonstrating an “acceptable” level of safety, regulators/certifiers are justifiably uncomfortable saying yes to anything short of zero risk. Aside from the general rule of government regulation that agency actions must be reasonable, there is no explicit legal authority or guidance whereby FAA can, or must, consider financial or commercial viability when devising safety standards and mitigations. Consequently, especially in high profile reviews like the B377 MAX, manufacturers can be forced to pile fix on top of fix, redundancy over redundancy, regardless of cost, trying to satisfy an institutionally insatiable regulator. No doubt the dread of media and/or Congressional criticism sometimes leads to overly conservative—and unnecessarily costly–decision making.
A second reason safety re-certifications can become so problematic is that critical stakeholders who could help FAA make more holistic safety decisions appear to be absent from the process. In the case of B737 MAX for example, it seems that airlines and their passengers–who are protected by, and who pay for these safety measures—have been relegated to the role of concerned observers. Unfortunate, because passengers themselves seem intuitively able to balance additional layers of safety against cost when booking airline travel. They vote with their feet when they believe a specific airline, operation or vehicle has gotten too risky, and conversely they seek alternatives when excessive layers of safety drive fares to unreasonable or unaffordable levels. Even when a safety issue has been flagged for a particular airline or aircraft model, there are some passengers who willingly accept the higher perception of risk and fly anyway when the ticket price gets low enough. Airlines, as proxy for their customers, are probably the best source of collective knowledge about how safety issues impact travel decisions, about what the market will bear in terms of costs for safety enhancements, and about when, in what markets, and under what circumstances any given process of probing and fixing safety issues is enough. And yet FAA seems determined to struggle for perfection and closure outside the commercial and market context, without the collective wisdom of the customers and traveling public it serves.
So, although not a complete solution, the authors suggest that it would be helpful to invite airlines in a formal and organized way, as proxy for the traveling public, to involve themselves actively in the vehicle safety review process– perhaps by way of FAA-enpaneled Airline Safety Advisory Councils. A targeted Council would be convened as needed for a specific safety incident or issue, and could be composed exclusively of airlines owning or leasing the aircraft model in issue. Voting rights would be based on annual passenger seat miles operated by each airline using that aircraft, with some provision for aircraft on order but not yet delivered. The FAA chartering document might state quorum, voting majority, and voting anonymity rules, or this could be left to the Council itself. Individual airlines probably would enlist their own passengers, pilots, engineers, maintenance technicians, financial and market analysts, and other internal stakeholders to advise the airline on matters being put to vote. FAA might ask the Council to consider and vote on various versions of safety fixes or mitigations, until a solution satisfactory to the collective of participating airlines is reached. Iterative consultation rounds might progress from expensive, technically sophisticated solutions, to more human centric or operational improvements; or on the other hand, fixes perceived to be insufficiently rigorous to satisfy customer demands might be upgraded to more costly ones. The goal is for the traveling public, through the airlines, to help FAA and aircraft manufacturers decide when, short of perfection, safety fixes and improvements are good enough. FAA, of course, is free to accept or reject any Council advice, and always is the official certification decision maker on any safety matter. But the Airline Safety Advisory Council could provide invaluable collective wisdom about customer views and preferences, and the financial and market implications of contemplated safety measures—rationale that satisfies public, media, and Congressional critics.
Safety Advisory Boards are not new or unprecedented. They are routinely used by other federal agencies regulating and certifying operations in high risk activities, for example, the Nuclear Regulatory Commission’s Advisory Committee for Reactor Safety, and the Federal Food and Drug Administration’s Advisory Panel on Medical Devices. FAA itself recently chartered a Safety Oversight and Certification Advisory Committee [FACA] that might be pressed into service to host an Airline Safety Advisory Council as herein described. In any case, how can more information and community views be a bad thing?
 Greater involvement of FAA in certification process, https://www.wsj.com/articles/faa-chief-explores-overhaul-of-plane-approvals-after-737-max-crashes-11574034318; withdrawal of certification delegation to Boeing, https://www.wsj.com/articles/boeing-faces-new-obstacle-in-returning-737-max-jets-to-service-11574822775
 Foreign authorities to do their own certifications, https://www.wsj.com/articles/after-737-max-crisis-foreign-regulators-raise-scrutiny-of-boeings-next-jet-11574870007
 For example, when deciding whether a proposed level of safety is “acceptable” for a new or unprecedented operation, the authors have suggested the prevailing incident/accident rate in the specified operating environment to be a good indicator. This standard is based on the theory that, by willingly flying, the public considers the current state of air transportation safe enough, and any operation that meets or exceeds this current level of safety is “acceptably” safe. See FAA Order 1100.161 CHG1, https://www.faa.gov/documentLibrary/media/Order/Order_1100.161_CHG_1.pdf , in which FAA designates 1996 as the baseline “acceptably safe” year against which future changes and enhancements would be assessed. Cf. CANSO’s “We are All One in the Sky” paper, which proposes 2017—the safest year in aviation safety–as the baseline safety target level.
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