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Boeing & FAA DER Abuse Leads to 346 Dead, Loss of International Certification Acceptance, Investigations

The Boeing and FAA sins in the 737 MAX design and certification program continue to grow in number, severity, and consequence. This may now include criminal charges, as the US DOJ and DOT Inspector General begin investigations with a grand jury, preservation requests and plenty of media hysteria.

This is not the first time that a new Boeing airplane program has had incidents caused by poor system safety design and certification, with Boeing and FAA abuse of the Designated Engineering Representative (DER) program. A DER is an individual outside of the FAA who is approved by the FAA to act as its representative in reviewing and approving engineering data for compliance with airworthiness standards. Many Boeing employees have DER status and due to FAA staff limitations and Boeing desire for rapid internal approvals, Boeing DERs perform much of the safety review and approval work, normally the responsibility of FAA staff. The FAA is supposed to manage DERs and make sure they do not abuse the system or make mistakes.

In 2013, the new Boeing 787 Dreamliner experienced a series of battery-related incidents that quickly resulted in the grounding of the entire fleet of 787s, fifty of which were in revenue airline service. Fortunately, no fatalities occurred, systems were redesigned, and the fleet resumed operations three months later. The NTSB issued its final report on the 787 battery incidents in 2014, and with it came several Safety Recommendations related to poor system safety design and certification issues associated with the Boeing/FAA DER program. Most of these DER program Safety Recommendations have yet to be closed by the NTSB with “Acceptable Action” as the FAA is still working on the changes.

The first NTSB Safety Recommendations related to a Boeing/FAA designated representative program and relationship date back to a 1990 accident involving a Boeing 707. Since then the NTSB has issued additional Safety Recommendations to the FAA regarding such programs for a 1992 Robinson helicopter accident in which conflicted Robinson managers were making poor approval decisions, a 1995 McDonnell Douglas DC-9 accident in which designees made poor approval decisions, and a 1995 Embraer turboprop accident in which designees made poor approval decisions. “In each case, the fox was guarding the henhouse,” said Robert A. Clifford, founder and senior partner of Clifford Law Offices in Chicago, who has litigated numerous aviation cases against Chicago-based Boeing.

According to Clifford, “The temptation for Boeing and others to abuse the DER system to get what they want when they want remains too great. One need look no further than the 737 MAX MCAS design and flight manual/training program approvals and subsequent Lion Air and Ethiopian Airlines fatal accidents that have been preliminarily attributed to those issues.”

The egregiousness of these Boeing 737 MAX airworthiness designee approvals and lack of adequate FAA oversight and correction has now resulted in Canada and Europe stating they will no longer accept FAA airworthiness findings and will do their own reviews and approvals, thereby breaking from the decades-old FAA/Department of State Bilateral Airworthiness Agreements in which each country accepts the competence of the others airworthiness authorities in properly certifying aircraft and related parts and systems. Other countries will likely follow in the biggest embarrassment to the US aviation industry in its 100-plus year history.

Much worse is the tragedy of the 346 deaths whose families will never forget or escape the emotional pain that Boeing and the FAA have caused them.

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