The public and airlines around the world have long accepted the Federal Aviation Administration as the gold standard for certification and safety, and Boeing as the gold standard for airplane design.

But absent radical changes, neither will be so highly regarded in the future given the recent Boeing 737 Max plane crashes, which killed 348 people within five months in Ethiopia and Indonesia.

In my years as general counsel of the National Commission on Product Safety and chief counsel of the House Commerce Oversight and Investigations subcommittee, I reviewed many failures of safety regulation as well as some major successes. The failures were often tied to the power of big money to influence well-intended legislation and regulation; the successes often grew from public outrage and courageous political leaders.

The cause of the two crashes, while still not finalized by investigators, appears to be a new anti-stall software system (the MCAS) used by Boeing to allow its modified 737 to use larger engines, carry more passengers and perform more economically.

The reason for the change was competition from European manufacturer Airbus, selling the A320, a new, more efficient airplane. In a rush to meet Airbus competition, Boeing and the FAA failed to require adequate pilot simulator training on the new MCAS, the anti-stall software, and to inform pilots what to do to disengage it in the event of a system failure. Two safety devices to alert pilots to software problems, a “disagree light” and “angle of attack” gauges, were sold by Boeing only as options.

The result was that, even though the new software was certified for safety by Boeing and the FAA, pilots were unable to quickly recognize and disengage malfunctioning MCAS software, sometimes frantically scanning Boeing manuals as their planes plummeted downward. At least half-dozen pilots reported being caught off guard by repeated sudden descents by the 737 MAX.

What is the underlying reason for these crashes and their likely adverse impact on Boeing and in U.S. safety leadership?

The FAA states that it does not have enough expert employees or sufficient budget to staff the review and testing of complex new airplanes. Boeing lobbied hard for changes in the law to permit delegating much of the safety review process to it, and Congress obligingly went along. That turned safety certification into a continuing conflict of interest — an accident waiting to happen.

The FAA delegated to Boeing the design of the 737 MAX, the amount and nature of simulator “hands on training” and the software information given to pilots. With the FAA’s approval Boeing made key software safety systems an optional purchase.

If the now co-opted FAA had mandated adequate simulator “hands on” training for pilots on the new MACS and its tendency to drive the nose of the plane downward and if warning options showing malfunction of the MCAS had been incorporated into the plane and not sold as extras, the two crashes might not have occurred.

There are some essential actions that should be taken to avoid future air disasters like this one.

1. A multi-member air safety commission, with bipartisan commissioners serving staggered terms, would protect safety better than the FAA’s single administrator, who is more subject to industry and political pressure. The Consumer Product Safety Commission is an example of such a multi-member government safety structure.

2. A legal prohibition on the “revolving door” between employment by manufacturers and the safety agency’s top appointments is needed, including a prohibition on top appointees working for a company in the aircraft industry for a period of years after serving with the FAA.

3. Delegation by the FAA of major safety review functions and overall certification of airworthiness to manufacturers should be prohibited.

But no matter how the agency is structured, no matter what prohibitions on the “revolving door” between industry and government are incorporated by law, if the agency does not have the funds to hire and retain expert engineers and designers, it most certainly cannot fully protect the public.

Taking steps to improve our air safety system will not be easy. Congress alone can legislate the changes. But only the American people, at the polls, can ensure that they elect officials, including the president and Congress, who are committed to protecting public safety.

 

Lemov is an attorney who served in the 1970s as general counsel of the National Commission on Product Safety and chief Counsel for the House Commerce Committee’s Subcommittee on Oversight and Investigations. This first appeared in the Baltimore Sun.