Congressional leaders reached agreement early Tuesday morning on an end-of-year government spending bill that includes an amendment to give Boeing the clearance it needs to get its 737 Max 7 and Max 10 jets certified without further changes.
The amendment ensures a deadline included in legislation passed in 2020 does not apply to the Max 7 and Max 10 models that have yet to enter service.
Absent that waiver, with the deadline passed, the Federal Aviation Administration could not certify those two planes to fly passengers without an extensive design upgrade to the systems that alert the crew when something goes wrong in flight.
While the crew alerting system upgrade won't be required, the language in the new bill includes a condition proposed earlier this month by U.S. Sen. Maria Cantwell that will require all airlines to retrofit two specific safety enhancements.
Boeing developed those enhancements for the Max 10. The bill requires them to be retrofitted to the Max 7 and to the two earlier models already certified and in service, the Max 8 and Max 9 jets.
The amendment gives Boeing three years after the Max 10 is certified to retrofit those safety enhancements to all models of the Max, after which none can be operated without them.
The bill further requires Boeing to bear the cost of the retrofits.
The legislative step provides relief to Boeing, which had lobbied hard for an amendment to avoid considerable additional costs and delay in getting the Max 7 and Max 10 into service.
In July, Boeing CEO Dave Calhoun had even hinted that without the waiver it might cancel the Max 7 and 10 models.
In a statement, Cantwell welcomed the inclusion of the condition she proposed rather than just granting Boeing a straight extension, as several Republicans have proposed since September.
The legislation advanced Tuesday "is much stronger than the no-strings-attached approach that was first offered," Cantwell said. "Passengers need to know that the entire Max fleet will be uniform and safer."
Still, the condition Congress attached to the reprieve for Boeing merely mandates for U.S. airlines what Canadian and European aviation regulators have already said they will require of airlines in their jurisdictions.
So Boeing would have had to offer the two safety enhancements as retrofits in any case.
Intensive lobbying
Both major Boeing unions wrote to Congress last week to support the jet maker's appeal for relief to protect employment at the Max final assembly plant in Renton and at suppliers across the nation.
The head of the International Association of Machinists, Robert Martinez, wrote to House Speaker Nancy Pelosi, D-Calif., warning of job losses without a reprieve for Boeing and "devastating impacts on thousands of workers and their communities throughout the U.S."
Matt Biggs, president of the International Federation of Professional and Technical Engineers — the parent union of Boeing's Society of Professional Engineering Employees in Aerospace — wrote to Pelosi and Senate Majority Leader Chuck Schumer, D-N.Y., advocating for the condition proposed by Cantwell.
"We ask for your support for a remedy that advances aviation safety while also allowing the Max-10 and Max-7 variants an opportunity to complete the certification process," Biggs wrote.
The families of the victims of the two Max crashes in 2018 and 2019 have opposed the safety waiver.
In an interview, Michael Stumo, whose daughter Samya Rose Stumo died on Ethiopian Airlines Flight 302, called Congress' action "a total swamp move."
He said Congress is "reducing safety with pure political power and enabling Boeing's profits over safety, without hearings, without data, without scrutiny."
In March, two technical experts critical of Boeing sent a proposal to the Senate Commerce Committee, chaired by Cantwell, for a crew alerting system upgrade they deemed acceptably safe at a likely cost of at least $1 billion to the jet maker. That proposal failed to gain support.
U.S. pilots unions have been divided on the issue.
The union representing the 15,000 pilots at American Airlines, the Allied Pilots Association, opposes clearing the Max 7 and 10 and wanted the crew-alerting system upgraded to make it safer.
But 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.
And the Air Line Pilots Association, which represents more than 66,000 pilots in North America, also lined up with Boeing, issuing a statement that "we are confident in the safety" of the Max.
Known as the omnibus appropriations bill that funds government spending for the next year, the legislation is an all-or-nothing package of about $1.7 trillion that Congress must vote up or down in total without changes.
A must-pass bill like this typically emerges into public view only after last-minute backroom negotiations over dozens of unrelated amendments.
It doesn't go to a vote without agreement among the top four congressional leaders — Pelosi, Schumer, House Minority Leader Kevin McCarthy, R-Calif., and Senate Minority Leader Mitch McConnell, R-Ky.
Rep. Peter DeFazio, D-Ore., chair of the House Transportation Committee that led the key congressional investigation into the Max crashes, continues to oppose any waiver for Boeing on the crew-alerting system and a spokesperson for his committee said the language in the bill was included over his objection.
However, Pelosi is unlikely to have advanced the bill without hearing from the chairs of all the key committees, including DeFazio, that they would at least not try to block the legislation.
Boeing declined to comment.
Two safety upgrade retrofits for all Maxes
Boeing needed the reprieve because the Aircraft Certification, Safety and Accountability Act — passed in 2020 after the two Max crashes that killed 346 people — requires all planes certified after the end of this year to have crew-alerting systems designed to the latest safety regulations.
The Max, a variant of the 1960s-era 737 design, doesn't meet that standard.
As Boeing introduced multiple new variants of the 737 over the decades, the FAA repeatedly waived the need to meet current standards on cockpit systems, instead grandfathering in the 737 design on the grounds that the airplane has proved largely safe in service.
Certification of the Max 7 is likely in the first quarter of next year, past the deadline. Boeing says the Max 10 won't be certified until late 2023 at the earliest.
Without the deadline waiver in the omnibus bill, Boeing would have been forced to fully upgrade the crew alerting systems.
As it is, though the jet won't meet the latest crew alerting standard, the Max 10 flight systems will have two significant enhancements.
As a result of what happened on the two Max crash flights, in addition to fixing the flight control system that was the primary cause of the crashes, Boeing developed these further system improvements and is flight testing them on the Max 10.
The first enhancement feeds to the jet's flight computer a third measure of the jet's angle of attack, the angle between the wing and the oncoming air stream, a key data point used in various control systems.
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.
In the Max crashes, the flawed flight control system depended on a single angle-of-attack sensor reading that proved false.
The second enhancement is a switch that enables the pilot to silence an erroneous "stick shaker" — a stall warning that vigorously vibrates the control column.
During the Max crashes, a false stick-shaker alarm distracted the pilots throughout the flight.
The omnibus bill amendment ensures those improvements will be on all Maxes flying in the U.S. within three years of the Max 10's certification.
Both European and Canadian authorities had previously made clear they will also mandate that these two safety enhancements must be retrofitted to all Maxes in service.
"It is Transport Canada's expectation that these post return-to-service design improvements will be retrofitted to all Boeing 737-8 aeroplanes operating in Canada," that agency confirmed via email last week.
Likewise, the European Union Aviation Safety Agency said this month that it has an agreement with Boeing that the safety upgrades on the Max 10 will be retrofitted on the in-service fleet of Max 8s and Max 9s flying in Europe.
Matching those mandates in the U.S. won't add to Boeing's design work. However, the three-year deadline to implement the retrofits will demand a fast pace of work on the aircraft fleet.
Congress will vote on the omnibus bill this week, before the Christmas recess. Since voting it down would bring a government shutdown, the bill is all but certain to pass into law.
