737 MAX -7 and -10 will not certify in 2022: Boeing lobbies Congress threatening cancellation

Finally, the secret that has been shouted everywhere is out: the two Boeing 737 MAX variants that have not yet been type-certified by the FAA will not be certified before the end of the year, putting them at serious risk of cancellation.

According to an investigation by Dominic Gates for the Seattle Times, the Federal Aviation Administration (FAA) sent a letter to the manufacturer to let it know – in less than kind terms – that the documentation it submitted to certify the 737-7 is inadequate and that this makes it unlikely that it will complete the process before December 31.

This document from the U.S. aviation authority complements the one sent to Boeing in March, in which they made it clear that the 737-10, the highest-capacity variant of the MAX family, was also not at a point in the process where there was any guarantee that it would get its certification during 2022.

The December 31 deadline this year is key, because on January 1, 2023, the Aircraft Certification, Safety and Accountability Act (ACSAA), which tightened aircraft certification conditions following controversy over the FAA’s lax controls over the type certificate review and approval process, will take effect.

Pages from BILLS-116HR133SA-RCP-116-68 - Aircraft Certification, Safety, and Accountability Act

Paradoxically, what benefited Boeing in obtaining FAA approval for the -8 and -9 variants (and the catastrophic results of the sloppiness of that process) created a disaster and such was the agency’s need for overcorrection that, today, certifying the -7 and -10 variants is almost impossible.

A philosophical question

Beyond the technical details, the dispute can be simplified to a concept: What provides more safety: maintaining fleet commonality or adding more warning systems?

ACSAA clearly states that any aircraft certified on or after Jan. 1, 2023, must comply with the current regulation on crew alert systems. Boeing created and installed a system called EICAS: Engine Indicating and Crew Alerting System. Airbus has its own, called ECAM (Electronic Centralized Aircraft Monitor).

Both systems are central to the operation, since they provide real-time information on the aircraft’s status and trigger alerts that can lead to the automatic execution of checklists and suggest actions to be taken, thus relieving the crew’s burden.

Currently, all Boeing aircraft are equipped with EICAS. All but one: the 737.

In 2014, the manufacturer lobbied the FAA for a waiver to upgrade the warning systems. It based its case on two central issues: the number of hours the various 737 generations had flown to date -more than 300 million- and the small number of model accidents in which an inefficient warning system was a determining factor.

Boeing acknowledged three instances in the decade prior to the filing where an improved warning system could have prevented or mitigated the tragic outcome – Helios 522 (depressurization hypoxia), Aeroflot-Nord 821 (loss of situational awareness) and Turkish Airlines 1951 (radio altimeter error) – but indicated that preventive measures had been taken from each and that there was no commonality between the accidents.

The other line of argument in the waiver request was simpler: money. Boeing estimated the cost of complying with current regulations at about $10 billion, between the redesign of the aircraft and the additional crew training it would require.

The seamless transition from the Next Generation family to the MAX was the most critical point in the builder’s offer. It was the central sales pitch to a 737NG operator: a differences course taken online, validation and flying. No simulator. If the MAX would have lost that feature, it’d lost everything.

In April 2014, the FAA gave Boeing what it so desperately asked for: it approved the waiver saying that «the added safety benefit resulting from complying with the crew alert regulation was not commensurate with the cost necessary to comply.»

The builder continues, to this day, to reaffirm that the main safety factor is provided by commonality: differentiated training creates confusion for crews. «A common and consistent operational experience across the 737 family benefits crews by increasing safety and reducing risk,» it said in a statement this year, when it received the first letter from the FAA questioning the 737-10’s certification.

With a little help from my friends

With the FAA not having an inch of leeway to grant lax permits, Boeing will have to turn to the other ace up its sleeve: lobbying in the U.S. Congress.

According to Gates, Roger Wickers, a Republican senator from Mississippi and minority leader on the Commerce Committee, sent a letter to the FAA asking how much more time Boeing might need to certify the variants if it fails to do so by the end of the year.

A source quoted by the Seattle Times said Wicker submitted a draft amendment to the National Defense Authorization Act that would give the manufacturer the extra time it would need to certify the two non-EICAS aircraft: two years from today, Sept. 30.

It is difficult to estimate what the chances are that such an amendment will pass, as the midterm elections are not long away, and legislators’ positions are very susceptible to Boeing’s influence in the states they represent.

Sen. Maria Cantwell, a Democrat from Washington, the state where the manufacturer’s historic Seattle headquarters is located, said she will consider «whatever the FAA deems safest,» whether that is maintaining commonality or moving forward with redesigning the MAX systems.

In the House of Representatives, Peter De Fazio, who led the investigations that seated Boeing’s CEO at the time (Dennis Muilenburg), is adamantly opposed to granting an extension of the deadline.

What will the future hold for you, MAX?

Beyond the vicissitudes of certification, the MAX family is finding a way back. While Boeing has accumulated aircraft it had built and sold for Chinese airlines while waiting for the CAAC to finally reauthorize their operation, the company continues to find customers for all four variants even though the future of two of them is at least uncertain.

Canadian low-cost carrier WestJet announced 42 737-10s on the very day that the FAA document became known – let me, once again, disbelieve certain coincidences – but the truth is that the chances of the 737-10 reaching commercial service, given the current situation, are slim to none. So, either WestJet doesn’t quite know what’s going on with what it just bought, or it knows exactly what’s going on. I don’t know if I’m making myself clear.

There are three possibilities: Boeing pulls a miracle out of the woodwork and certifies the two models, as is, in three months; it undertakes a redesign of the aircraft that destroys its main selling point; or it gets the U.S. Congress to give it more time.

Whichever it is, let’s hope it is the safer one.

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