If Congress doesn’t mandate Boeing 737 MAX safety retrofits, Europe will

Even if Congress doesn’t force U.S. airlines to retrofit two new safety upgrades in their Boeing 737 MAX fleets, Europe’s aviation regulator intends to ensure those enhancements are mandated for carriers there.

Both the Federal Aviation Administration and the European Union Aviation Safety Agency have approved the MAX as safe to fly passengers. EASA insists Boeing must make it safer still.

EASA’s head of communications Janet Northcote said via email Friday that “Boeing has committed to make these upgrades available for retrofit.”

“The actual retrofit of the in-service fleet can be achieved by different means, including possibly mandatory action from the FAA or EASA,” Northcote added.

Senate Commerce Committee Chair Sen. Maria Cantwell, D-Wash., proposed an amendment this week that would require all U.S. airlines to retrofit the two safety upgrades as a condition of allowing Boeing extra time to certify the MAX 7 and 10 models.

Others in Congress are maneuvering to grant that extra time with no strings attached.

Should that legislative push prevail over Cantwell’s, it’s possible European airlines would have to meet a higher safety standard than those in the U.S.

Northcote said EASA has “no comment on the US Congress action.”

Two major upgrades

When EASA approved the MAX return to service in January 2021, it tacked on a condition the FAA had not required.

To get the MAX back in service in Europe, Boeing agreed with EASA to develop two major safety upgrades for the MAX 10 — the final and largest MAX variant — that within a few years afterward would be retrofitted to the in-service fleet of MAX 8 and MAX 9 airplanes.

The first upgrade is a third measure of the jet’s angle of attack — the angle between the wing and the oncoming air stream — a key data point that feeds into various flight control systems.

An inaccurate reading of the angle of attack on one sensor triggered the series of system failures that caused the two MAX crashes and killed 346 people.

The MAX has two physical angle-of-attack sensors. This upgrade adds a virtual cross-check of that measure calculated by the flight computer from a variety of other sensors and inputs.

The second retrofit requirement is for a switch that would enable the pilot to silence an erroneous “stick shaker” — a stall warning that vigorously vibrates the pilot’s control column.

A continuous false alarm stick shaker was one major distraction for the pilots throughout the two crash flights.

Both upgrades are currently being flight tested on the MAX 10, which Boeing says will not complete certification until the end of next year or early 2024.

Congress must decide

What makes this a politically fraught moment for Boeing is a deadline inserted into the Aircraft Certification, Safety and Accountability Act of 2020 that requires all planes certified after the end of this year to have a crew-alerting system compliant with all the latest safety standards.

Since the 737 crew-alerting system has been grandfathered-in multiple times over the decades, the 737 MAX does not comply. So with certification of the MAX 7 and MAX 10 delayed into next year, unless Congress extends or removes that deadline those jets cannot be approved to fly passengers without a major design change.

Some in Congress, including both Republicans and Democrats, are ready to relax the rule for Boeing and extend the deadline with no strings attached.

Rep. Jim Clyburn, D-S.C., a leading Democrat in the U.S. House, favors granting Boeing an extension, according to two sources on Capitol Hill.

Likewise, Sen. Ted Cruz, R-Texas, who will become the ranking Republican on the Senate Commerce Committee in the next Congress, was quoted by The Wall Street Journal saying “it makes sense” to grant Boeing a reprieve.

Rep. Peter DeFazio, D-Ore., who currently chairs the U.S. House Transportation and Infrastructure Committee, is opposed to changing the deadline. But Rep. Sam Graves, R-Mo., who will take over that committee in January, supports granting Boeing an extension.

On Tuesday, U.S. Sen. Maria Cantwell proposed an amendment that would remove the deadline but adds a condition: all MAXs flown by U.S. airlines would be required to install the two MAX 10 safety upgrades.

To be clear, Boeing has said it will make the upgrades available as a retrofittable option to any airline customer that wants it.

Cantwell’s amendment would make it mandatory for U.S. airlines to add the upgrades to all the earlier MAX models now flying and to all MAXs they add to their fleets in future, with Boeing paying for the work.

Yet Michael Stumo, whose daughter Samya Rose Stumo died in the crash of Ethiopian Airlines Flight 302 and is a leading figure among families of the MAX crash victims, said that given EASA will mandate the upgrades he doesn’t see Cantwell’s compromise as adding much in terms of safety.

He said Cantwell’s amendment is “weaker than it looks on face value because EASA will require it, and highly likely Canada will require it, and that will transmit those upgrades throughout a good part of the world.”

Stumo wants Cantwell instead to leverage all her power as Commerce Committee chair to try to block any deadline extension and force Boeing to substantially enhance the MAX crew-alerting system.

With much political scrambling behind the scenes in Congress to get something done by year’s end, the outcome remains unclear.

Cantwell’s move ties the question of whether the block to certifying the MAX 7 and 10 should be lifted to the separate issue of whether to mandate retrofits of the MAX 10 safety upgrades. If she convinces enough lawmakers, both issues would be resolved together.

But if Congress passes a no-strings extension for Boeing, it’s also possible the MAX 10 upgrades could be dealt with separately later.

When faced with the prospect of more stringent safety rules applying to European airlines than to U.S. carriers, either Congress or the FAA might be embarrassed into mandating the retrofits.