Why the FAA Delegates Certification to Boeing — and Why That’s a Good Thing

One of the things many people have been shocked to learn, in the aftermath of the Ethiopian Airlines Boeing 737 MAX crash, is that the FAA delegates much of the certification process to the aircraft manufacturer.

People are shocked, shocked, that a company would be able to ‘self-certify’ and suggest this is some sort of dereliction of duty when nothing could be further from the truth.

I’ve pointed out that it’s simply not possible for the FAA or any civil aeronautics agency to have the expertise necessary to do it themselves. In fact it’s been FAA practice since 1956 and aircraft and airlines have become incredibly safe – increasingly so – during this time.

There cannot possibly be enough FAA engineers to learn, supervise, and test everything. And they cannot possibly have sufficient expertise in the technology to do so. First, compare numbers:

1100 employees — 400 are dedicated to administrative and management personnel. So roughly 700 individuals are responsible for ALL design approvals, production & continued airworthiness of everything that flies and of that, maybe 400 are engineers. Well under 100 of those engineers are assigned directly to Boeing.

In contrast Boeing employs 45,000 engineers.

Delegation by the way isn’t limited to the United States or to the 737 MAX. We don’t yet know what went wrong in the certification process, just as we don’t yet know exactly what went wrong in the Ethiopian and Lion Air tragedies.

Certainly design elements of the 737 MAX led to software improvements to enhance the safety of the aircraft, but which are vulnerable to faulty Angle of Attack readings. And there are reports that risk created by such an error was understated during the certification process. We certainly have no reason to believe that the FAA could have done a better job on this score.

Ultimately aviation is made increasingly safe by careful determination of the probably cause of each and every incident, and making changes to procedures and technology based on that learning. When something goes wrong it’s because the situation hasn’t ever happened before, or because someone fails to follow procedure. The standardization of processes, and improvement in processes, makes air travel remarkably safe.

And part of this very process has been the FAA’s supervised delegation system, and similar programs around the world.

In any case, legislators who are grandstanding on the delegation issue should at a minimum reveal that it’s authorized by legislation and they haven’t ever previously taken steps to curtail the practice. What that would reveal is that the process has worked, that we’re now investigating incidents where it’s reasonable to question (and improve) the process, but pointing fingers at the FAA at this point seems misplaced.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. While your points regarding increased aviation saftey over the years is well-taken, that is no excuse for an abject failure of oversight, which seems to be the case here. The Department of Defense doesn’t employ as many rocket scientists, tank engineers, etc. as the defense contractors who build them, but they still exercise oversight over the Army, Navy, and Air Force acquisition programs to make sure the things the DoD buys work like they’re supposed to. There is also a problem when, as the seattle Times reported, the manufacturer misrepresents system capabilities to avoid triggering thresholds that will cost them more to test, train, and deploy. While these particular certifications certainly appear to be problematic, the larger concern is the desire by the company to profit as much and as quickly as possible, and the government being complicit in those efforts at the cost of safety.

  2. I respectfully disagree. It is never, ever a good thing when a regulatory agency has to delegate its job to the corporation or entity it is supposed to be regulating, overseeing and monitoring.

    If the FAA doesn’t have the ability to do the job it has been tasked with then that doesn’t make it a good thing that it’s delegating responsibility to Boeing – it makes it an incredibly bad thing that we have a Government agency incapable of doing a major part of its remit.

    As far as dereliction of duty goes: Let’s see what comes out of the DOJ and FBI investigations and let’s see if, as has been suggested in the press, the FAA were all too happy to go along with a speeded up certification process that was in Boeing’s commercial interest and apparently not in the interest of aviation safety.

  3. The problem here is not delegation but the way Boeing and the FAA implemented it. For example we didn’t need 300+ people to die to know that critical systems needed redundant inputs. Also if the news reports are correct Boeing unilaterally quadrupled a system limit and didn’t tell the FAA.

    The problem is this wasn’t delegation this is regulatory capture.

    This is an object lesson in laissez faire capitalism and the need to properly fund and resource the regulators

  4. Regulatory capture has been a major problem in DC for many decades. The big money comes in and (directly or indirectly) influences legislators, regulators, and others in and out of government in such a way as to affect the regulatory process to suit best those who are supposed to be regulated. The revolving door between the public and private sector is part and parcel of regulatory capture by industry.

    A lot of this is a natural outcome of government having limited competency in technical matters and in government being there to serve constituents — corporate or otherwise — all while the best and brightest in government are in government for a limited period while seeking to jump onto a private ship that floats their boat financially better all the way to the bank. The only natural way to right the balance and protect consumer interests is to make consumer-friendly litigation easier for consumers and more punitive for those engaged in regulatory capture when something goes wrong.

  5. That Seattle Times article and other informed coverage paint a pretty damning portrait of regulatory capture of the FAA by Boeing, with multiple failures in the process. This is most definitely not how government oversight is supposed to work. But hey, what could go wrong?

  6. Any first year student having done something on ‘Administrative Organzation’ will likely have forgotten most, but will remember ‘segregation of duty’.
    The strength of this concept is simple: keep people honest.

    So I disagree

  7. Gary, you really got this really, really wrong. Boeing can’t self certify because doing so has an inherent conflict of interest, as others have pointed out. The FAA does not have to do the tests or write the reports – those are correctly Boeing’s tasks, but they DO need to critically review the concepts, the requirements, the designs, the construction, the tests, and the traceability from one stage of analysis, design, build, training, and the maintenance plans, from each stage to the next. Boeing does all the work, and the FAA does INDEPENDENT oversight of that work. If the impressive safety record is to be continued/restored, then we collectively need to invest in an FAA that can do this essential work. That probably means hiring more professionals capable of doing this essential work, AND compensating them enough to keep many of the best and brightest from leaving the FAA for the aircraft industry as soon as they get some experience.

  8. By this logic, the FDA doesn’t need doctors, the CDC doesn’t need scientists, and the IRS doesn’t need accountants! Let’s just let everything regulate itself! No one has ANY reason to lie or anything.

  9. The FAA regulates Boeing. Boeing is supposed to document the functionality and safety of the aircraft and FAA spot checks — rather then doing and re-doing all the work themselves. Anything else is pretty much impossible.

  10. @SE_Rob – based on what we KNOW SO FAR the process here isn’t a material departure from the past. Of course FAA oversight has to be independent and it is, it’s a mistake to believe though that they can ever have the expertise to re-do the analysis themselves. FAA just isn’t going to scale 100x the number of engineers working on Boeing aircraft at higher salaries than today. Certainly unclear it would be warranted, but isn’t going to happen, though would be necessary to do what critics seem to want.

  11. Not to pick on Nick but..

    “The Department of Defense doesn’t employ as many rocket scientists, tank engineers, etc. as the defense contractors who build them, but they still exercise oversight over the Army, Navy, and Air Force acquisition programs to make sure the things the DoD buys work like they’re supposed to.”

    COUGH COUGH F-35 COUGH…

    And besides Defense acquisition is a joke. Overpay for under deliveries…and then move the goalposts on the acquisition and call a boondoggle a success. Doesn’t happen every time but has happened far too often in DOD acquisition history. The DOD is hardly a role model for the FAA to emulate here…

    Other than that, yeah, the FAA delegates a little too much and is too reactive. 737 jack screw design issue, anyone?

  12. 5 words. Gary you’re wrong. Regulatory Capture

    Gary sure the FAA could do inspections, congress & POTUS JUST WONT FUND IT,

    From airplanes to your local building permits and zoning decisions are all subject to RC! The regulators and the regulated are just too cozy 🙁

    Boeing made decision based upon cost and sales. Telling customers no difference and downgrading seriousness of results to what save money? Two AOA monitors but only used one reading, when apparently they could have used both!

    We read that airplane accidents are caused by a series of events – but the series here is Boeing trying to sell more planes. Let’s see where the criminal investigation leads! Sorry even here I have no faith ‘white collar’ crime prosecutors- se Mueller report ;-(

    Really disappointed with Boeing

  13. I guess I’m in the minority to actually agree with Gary on this one. The key incentive to keep the plane safe has nothing to do with a regulatory body, it has everything to do with corporate responsibility and simple economics.

    FAA can go through everything with a fine toothed comb, but when it’s all said and done Boeing is responsible. Don’t kid yourself, there are going to be 300 lawsuits filed for the passengers, they’re going to pay millions in lost revenue charges, potential lost sales… the financial losses they are facing are significant. So, besides the obvious ethical and moral issue of short changing the process, there are huge financial ones too. No company would purposefully do this and if they are found negligent they’re going to pay and pay a lot.

  14. I think that restaurants should conduct their own health inspections. Same principle. The FAA isn’t being asked to design and build an airplane, just to certify that it’s safe.

  15. I think that car manufacturers should conduct their own safety certifications. Because they employ 400,000 engineers.

    Plus, who needs seat belts or airbags? (For those too young to know, they were both vehemently resisted by automotive manufacturers, for the same reason behind Boeing’s criminal decision to take shortcuts on MCAS — it would increase costs.)

    Gary, this post is beyond silly — it’s criminal.

  16. Another fly in your logical ointment. Take it from a retired trial lawyer: Boeing, like all other giant corporations, hides behind regulatory approval to evade damages liability when things go wrong. “We complied with all regulations and were certified by the federal government,” the mantra goes. So now regulatory capture becomes a license to kill.

  17. Research the history of ETOP’s by J. Angelo DeSantis to understand that ultimately the FAA issues guidelines and requirements, they don’t design airplanes.
    Similar to the 737Max seemingly single point of failure, I have read that Airbus went through a similar experience with their pitot (??) tubes until they corrected those systems and logic after the Air France disaster over the Atlantic Ocean 5 – 7 years ago.
    But, I would love to get inside the mind(s) of the individuals that thought the MCAS/automatic Angle of Attack adjustments was an example of good engineering. And after that, the people that approved it. I am thinking they were the same group of people that developed and approved Windows Vista.

  18. Within certain limits (specified by FAA), we have to trust Boeing on the safety and functionality of its flight products. It does not make sense for the government to reproduce half a google with the ability to make sure google search is safe and reliable. In the same vein, it does not make sense for FAA to reproduce half a Boeing with the ability to make sure Boeing’s planes are safe and functional
    I would be interested to see how much FAA has grilled Boeing on this new feature of MCAS. Where were the points of failure, and especially single points of failure? How reliable was each component in operation? Did 737Max planes really need just one single sensor for MCAS input? Could we reasonably assume 99.99%+ 737 pilots could handle failures specific to 737Max? How usable was the system failure interface? Did Boeing even think through critical scenarios and did FAA make sure the interface was sufficient? Should some of the safety features be optional? When the planes finally came out, was the specification documents submitted to FAA (and other aviation authorities) still accurate? From the look of it, FAA failed its duty in asking important questions to make sure Boeing indeed thought things through and exercised caution appropriate for aviation safety..
    To be only one-sided preaching the advantage of self-certification without also bringing up what would be needed to make the outcome safe and reliable is a disservice to reader.

  19. Thanks Gary, that’s a nice summary of the roles & responsibilities of FAA vs Boeing, of any other applicant or certificate holder.

    Regarding several comments here, I see a lot of opinions without facts. The facts will become known over time, and as of today nobody is qualified to address what may or may not have happened between Boeing and the FAA in the 737 Max certification program. I appreciate the notion of “regulatory capture” but totally disagree and take issue with with ANY notion that the FAA design or delegation regulations themselves have been abrogated by the industry. Any competent practitioner of FAR 25 for Transport Category Airplanes will tell you in no uncertain terms that the regulations are more than adequate.

    The success of ANY delegation is fully dependent on the competence and integrity of the designee, combined with effective FAA oversight. If (if) there are any issues related to the Boeing delegation, those issues are not related in any way to the designee program.

    From here forward I’ll be geeking out, but with nothing but facts and specific references. I invite others to participate – with facts, please:

    The Supreme Court has found that the primary responsibility for the safety and airworthiness of a product resides with the manufacturer and operator, at LEAST in part because the FAA does not have adequate resources to guarantee safety. I’ve included a quote from their decision below, with a link to the whole thing all the way down. THAT also becomes a valid argument for delegation.

    JUST ONE SMALL SECTION FROM FAR 25 STATES THE FOLLOWING (Note the liberal use of the word “must”):
    25.1309 Equipment, systems, and installations.
    (a) The equipment, systems, and installations whose functioning is required by this subchapter, must be designed to ensure that they perform their intended functions under any foreseeable operating condition.
    (b) The airplane systems and associated components, considered separately and in relation to other systems, must be designed so that–
    (1) The occurrence of any failure condition which would prevent the continued safe flight and landing of the airplane is extremely improbable, and
    (2) The occurrence of any other failure condition which would reduce the capability of the airplane or the ability of the crew to cope with adverse operating conditions is improbable.
    (c) Warning information must be provided to alert the crew to unsafe system operating conditions, and to enable them to take appropriate corrective action. Systems, controls, and associated monitoring and warning means must be designed to minimize crew errors which could create additional hazards

    The designee system also works, as it has for well over half a century for organizations. In fact, delegation IN GENERAL is almost a full century old. If anybody is looking for hard data, see all the information presented below, with specific links at the bottom of my input. It works, plain and simple.

    FAA Delegation and Designee background: Chronology of FAA Delegation Program
    1927 First individual designees appointed. Fifty doctors appointed as Aviation Medical Examiners (AME).
    1938 Congress passed legislation specifically considering integration of the private sector into the certification process.
    1940 First Designated Engineering Representatives (DER), Designated Manufacturing Inspection Representatives (DMIR), and Designated Pilot Examiners (DPE) appointed. (Individual designees)
    1950 Congress clarified the language for appointment of designees. One reason given for this clarification was “FAA was clearly in need of private sector expertise to keep pace with the growing aviation industry.”
    1956 First Delegation Option Authorization (DOA) appointed. (Delegated organizations for aircraft manufacture)

    From FAA Order 8000.95 “Designee Management Policy” Chapter 5 Section 2
    “Responsibilities. A designee must:
    a. Represent the Administrator. Each designee must represent the Administrator in a
    manner that reflects positively on the FAA.
    b. Conduct Approved Activities. Each designee must conduct only those activities
    approved in DMS.
    c. Follow Policy. Designees must follow all requirements found in regulations, orders,
    and other policies related to the functions they perform.
    d. Maintain Skills and Knowledge. Designees must maintain technical skill and
    knowledge of subject matter specific to the designation held.
    e. Exhibit Sound Judgment. Designees must display sound judgment.
    f. Exhibit Integrity. Designees must show a high degree of integrity, responsibility, and
    professionalism. ”

    From FAA Order 8100-15B “Organization Designation Authorization Procedures” (The Boeing ODA is the organization that is taking the public hits):
    “Para 3-6. Responsibilities. ODA holders and units must follow the FAA regulations, directives,
    policies, guidance, and procedures as applicable to the authorized functions. The responsibility
    for finding compliance with the regulations and applicable policy remains with the ODA holder.
    The ODA holder is responsible for the activity of the ODA unit and ODA administrator.”

    The VERY FIRST PARAGRAPH of a 1984 Supreme Court decision (United States v. Varig Airlines) states:
    “The Federal Aviation Act of 1958 directs the Secretary of Transportation to promote safety in air transportation by promulgating reasonable rules and regulations governing the inspection, servicing, and overhaul of civil aircraft. The Secretary, in her discretion, may prescribe the manner in which such inspection, servicing, and overhaul shall be made. In the exercise of this discretion, the Federal Aviation Administration (FAA), as the Secretary’s designee, has devised a system of compliance review that involves certification of aircraft design and manufacture. Under this certification process, the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator, while the FAA retains responsibility for policing compliance. Thus, the manufacturer is required to develop the plans and specifications and perform the inspections and tests necessary to establish that an aircraft design comports with the regulations; the FAA then reviews the data by conducting a “spot check” of the manufacturer’s work.”

    Finally, the FAA has the authority to “pull” a designee’s privileges, whether it’s a person or an organization. A precedent is found in a Tenth Circuit Court of Appeals (see link below) – there is no difference between removing a delegation and not renewing it:
    “In conclusion, upon a thorough review of the record, it is our determination that the FAA’s decision not to renew petitioner’s DER status was supported by substantial evidence and was neither arbitrary nor capricious. The parties’ respective requests for oral argument are DENIED. Petitioner’s request for attorney’s fees is DENIED. The final order of the FAA denying renewal of petitioner’s designated engineering representative certificate of authorization is AFFIRMED.”

    FAA Delegation and Designee background
    https://www.faa.gov/about/history/deldes_background/

    SCOTUS Decision:
    https://supreme.justia.com/cases/federal/us/467/797/

    FAA Order 8100.15B:
    http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgOrders.nsf/0/f8e0e1795804a25086257b6d005db348/$FILE/8100.15B_CHG3_Incorporated.pdf

    FAA Order 8000.95:
    https://www.faa.gov/other_visit/aviation_industry/designees_delegations/designee_types/ame/media/8000.95.pdf

    Decision of the Tenth Circuit Court of Appeals, 1991:
    https://law.justia.com/cases/federal/appellate-courts/F2/936/583/402547/

  20. Profit is the name of the game, everything evolves around it. FAA claiming that “they lacked the data needed to act” shows that they are either inept or corrupt. Or both. There is a dire need to establish a third-party overseer, before hundreds of more lives are lost to incompetence and greed.

    It is irrelevant whether Boeing employs 45 or 45,000 engineers, since all of them serve the demands of the corporate masters, not to mention that they are required to sign non-disclosure agreements, banning them from speaking even to the FAA officials (check the details on 787 case back in 2016 – https://www.aljazeera.com/news/2016/06/boeing-stymied-staff-talking-regulators-160612134309023.html).

    The whistle-blowers were promptly outed – (https://www.aljazeera.com/news/2016/06/flawed-faa-redactions-expose-boeing-787-whistleblower-160612123344752.html).

    Speaking of FAA’s integrity: “The papers show some of those guys were complaining about too much pressure coming from their Boeing bosses, who wanted them to hurry up and sign things off. Many Boeing engineers we spoke to complained of this pressure. The old refrain was, “quality is king, but schedule is god!” That’s the problem – a regulator-engineer is stuck in the middle between the FAA, where the stated priorities are safety and quality, and the Boeing business, where quality, safety, schedule and profit are all jostling for priority.​” – (https://www.aljazeera.com/blogs/americas/2016/06/faa-driving-stake-reporter-heart-160612111631731.html​)

  21. Yes Gary, you really nailed it right on the mark with this article. I for one am also glad that pharmaceutical companies approve their own products on behalf of the FDA

  22. @DFA I am not sure if you meant it or were being sarcastic. United States is under attack by an opioid overdose crisis. It seems everyone except FDA and companies selling it is aghast at it. Yeah let’s leave it to the companies.

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