In what could be good news for Boeing, U.S. Sen. Maria Cantwell of Washington on Tuesday circulated draft legislation that would clear the way for the final two Boeing 737 Max models to enter service without changes to the Renton-assembled aircraft.
The Washington Democrat's legislative amendment would remove the deadline in a 2020 law that threatens to 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 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.
That politicians are scrambling to get some amendment through in the end-of-year legislative rush to relax the law signals imminent relief for Boeing.
The Max 7, the smallest variant, is crucial to the plans of the biggest 737 customer, Southwest Airlines. And the Max 10, the largest variant, has won multiple orders from Alaska Airlines, Delta, United and others.
Whether Cantwell's or competing amendments will become law is unclear.
The ranking Republican on her Senate Commerce Committee, Sen. Roger Wicker, R-Miss., filed an amendment to the NDAA in September that would have extended the deadline for Boeing until September 2024, with no conditions. That amendment is still alive.
Rep. Peter DeFazio, D-Ore., who currently chairs the U.S. House Transportation and Infrastructure Committee, remains opposed to any change to the current deadline, his spokesperson Peter True said Tuesday. Rep. Sam Graves, R-Mo., who will take over that committee in January, said at a conference last month that he would do everything he could to clear the Max 7 and 10 for certification.
Ansley Lacitis, Cantwell's deputy chief of staff, said, "We kept on seeing that this clean extension was still there and we didn't want to get rolled."
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 strongly 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."
What's at stake for Boeing
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.
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, 2 1/2 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 so they can join the 8 and 9 in service with the current crew alerting design unchanged.
U.S. pilot unions are divided on relaxing the law for the Max.
The Allied Pilots Association, representing the 15,000 pilots at American Airlines and one of the largest pilot unions in the U.S., opposes clearing the Max 7 and 10 and wants the crew-alerting system upgraded to make it safer.
Lining up with Boeing, the Air Line Pilots Association, which represents more than 66,000 pilots in North America, issued a statement that "we are confident in the safety" of the Max.
And the Southwest Airlines Pilots Association, representing the 10,000 pilots at Southwest — the largest Max customer, with 234 of the Max 7 variant on order — explicitly asked Congress to grant Boeing the relief.
The stakes of Congress' decision are enormous for Boeing.
CEO Dave Calhoun in July hinted at canceling the Max 10 rather than incurring the expense of a system upgrade and having to revise the pilot training for the model.
And at a conference in October, Casey Murray, president of the Southwest pilots union, suggested that if Boeing is forced to upgrade the crew-alerting system on the Max 7, Southwest might no longer want it — presumably because of the expense of additional pilot training.
"I don't know the market for it at that point," Murray said of the Max 7. "I don't know that it'll be Southwest."
Besides Southwest, only a couple of airlines have committed to that variant, with about 50 jets between them. If Southwest were to back out, the Max 7 would be dead.
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 and Transport Canada — as a condition of letting the Max return to service in Europe and in Canada.
Furthermore, EASA said it expected Boeing to offer these enhancements as a retrofit 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 anonymity 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
When Boeing in 2014 certified the first version of the Max, it convinced the FAA 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.
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-19 pandemic slowed Boeing's certification plans. Beyond that, 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, considerably lengthened the certification process.
Today the 8 and 9 models are flying in passenger service around the U.S. and the world. Since the grounding was lifted, they have safely flown more than 1 million flights.
The source familiar with Boeing's position said that in each of the five fatal crashes of 737 airplanes where the planemaker has acknowledged some failure of the crew-alerting system was a factor, it has introduced system upgrades to address the specific failures.
"The airplane has already through the decades demonstrated itself a safe product across a varied pilot demographic," he added: "The sheer volume of flights where there weren't accidents and there weren't issues means something."
Boeing statistics show that historically the 737 NG aircraft, the model before the Max, suffered less than 1 fatal accident per 10 million flights.
Boeing declined to comment about Cantwell's proposed legislative change, as did the FAA.
