Cantwell pushes to clear Boeing’s final 737 MAX models, with conditions

Sen. Maria Cantwell on Tuesday circulated draft wording for a legislative amendment that would remove the deadline threatening to block approval of the final two Boeing 737 MAX models as currently designed.

The Washington Democrat’s amendment would excise a provision in a 2020 law that would force Boeing to substantially change the crew alerting systems on the MAX 7 and MAX 10 models to get them certified to fly passengers.

In an interview, Cantwell said her amendment, while letting the MAX 7 and MAX 10 move forward, also includes conditions that would require all airlines to retrofit two significant safety enhancements on the MAX 8 and MAX 9 models currently in service.

She said the amendment puts no deadline on certification of the MAX 7 and 10, and will require the retrofit done probably within two to three years.

Cantwell said her aim is to head off attempts by Republicans to insert alternative amendments into the National Defense Authorization Act, or NDAA, that would give Boeing “a clean extension and call it a day” without any conditions attached.

“Mitch McConnell, I know for a fact, asked three or four times in the recent NDAA negotiations if he could move a straight extension,” Cantwell said.

Still, Cantwell’s move was immediately denounced by family members of the victims of the two fatal 737 MAX crashes that killed 346 people.

Wanting to force Boeing to upgrade its systems more substantially, they have lobbied against any amendment that would change the current law.

Michael Stumo, whose daughter Samya Rose Stumo died in the crash of Ethiopian Airlines Flight 302, said “crash families around the world are upset about this.”

He said U.S. legislators passed the law in 2020 as a result of the MAX accidents, but that already “their memory is fading again from the blood of the victims.”

Mandating European safety enhancements

The conditions in Cantwell’s provision would require the Federal Aviation Administration to mandate a retrofit on all MAX models of two safety enhancements Boeing developed and is currently testing on the MAX 10, the final and largest MAX jet.

The first is a third measure of the jet’s angle of attack, a key data point that feeds the flight computer the angle between the wing and the oncoming air stream.

The MAX has two physical angle of attack sensors. This would be a virtual cross-check of that measure calculated by the flight computer from a variety of other sensors and inputs.

The second retrofit requirement is for a switch that would enable the pilot to silence an erroneous “stick shaker” — a stall warning that vigorously vibrates the control column and is a big distraction if it’s a false alarm.

Cantwell said her amendment tells airlines “you have to make these retrofits and Boeing has to pay for them.”

A false angle of attack input and a distracting stick shaker were both contributing elements in the two fatal MAX crashes.

As a result, these specific improvements on the MAX 10 were required by two foreign regulators — the European Union Aviation Safety Agency (EASA) and Transport Canada — as a condition of letting the MAX return to service in Europe and in Canada.

Furthermore, EASA required Boeing to retrofit these enhancements to all prior MAX models.

“These modifications will be embodied in the 737-10 from the start of production and retrofitted on in-service MAX airplanes,” the agency stated in January 2021 when it allowed the MAX to return to service.

A source familiar with Boeing’s position, who spoke on condition of not being identified because of the sensitivity of the ongoing negotiations in Congress, said the company has agreed to offer these retrofit enhancements as an option.

“We’ll make it available to our airline customers,” the person said. “If they want them retrofitted on the rest of their fleet, absolutely.”

Cantwell’s amendment would make that mandatory. It would require the FAA to take enforcement action against any U.S. airline that doesn’t incorporate the retrofits.

The conundrum for Congress

The Aircraft Certification, Safety and Accountability Act, passed in 2020 following the two MAX crashes, states that all planes certified after the end of this year must have crew alerting systems designed to the latest safety regulations, a standard the MAX doesn’t meet.

When Boeing in 2014 certified the first version of the MAX, it convinced the FAA then that upgrading the jet’s 1960s-era crew alerting system would be too costly for too little benefit.

Boeing internal presentations made public during Congressional investigations into the MAX crashes elaborated on the company’s motives.

They reveal Boeing’s concern that upgrading the system would be expensive, would slow the MAX development schedule and would add to pilot training costs for airline customers.

Still, when Congress passed the 2020 law it was intended to apply to all future airplane designs, not actually to the MAX.

The first two MAX models, the MAX 8 and MAX 9, were already certified before the crashes. After the grounding that lasted 21 months while Boeing developed extensive fixes, the FAA then recertified those aircraft to return to service.

Today the -8 and -9 models are flying in daily passenger service around the U.S. and the world. Since the grounding was lifted, they have safely flown more than one million flights.

Congress provided two years grace before the 2020 law took effect on the assumption that the MAX 7 and MAX 10 would also be certified as safe to fly by then.

That proved false. That’s partly because the COVID pandemic slowed Boeing’s certification plans. Beyond that outside factor, the 2020 legislation also made the FAA process to certify an airplane much stricter — and slower.

Boeing is now required to more thoroughly test how a flight crew might respond to every malfunction of the plane’s systems. That, along with the FAA’s more rigorous oversight, has considerably lengthened the certification process.

Certification of the MAX 7, interrupted by the crashes and the prolonged grounding of the MAX worldwide, is likely in the first quarter of next year, past the deadline. Boeing says the MAX 10 won’t now be certified until late 2023 at the earliest, two-and-a-half years after its first test flight.

A Congressional amendment is the only relief available to Boeing that would allow it to certify the MAX 7 and MAX 10 with the current design unchanged.

Boeing declined to comment about Cantwell’s proposed legislative change, as did the FAA.