Why Boeing Needs an Act of Congress Or Something Worse to Get the MAX 7 and 10 Aircraft Flying

737, Boeing

As a general rule, if you need an act of Congress to make sure you don’t lose billions of dollars, then you are not in an ideal position. This, however, is exactly where Boeing finds itself if it wants to get the smallest and largest 737 MAX airplanes — the 7 and the 10 — into commercial service. There was a chance that Boeing could have escaped this fate, but the Federal Aviation Administration (FAA) has now firmly stated that won’t happen, and it says it’s all Boeing’s fault.

The 737 MAX was designed to have, let’s say, 4 1/2 variants. Those are:

  • 737 MAX 7 – ~153 seats in standard 2-class configuration
  • 737 MAX 8 – ~178 seats in standard 2-class configuration
  • 737 MAX 8-200 – ~197 seats in all-coach configuration that will make your knees bleed
  • 737 MAX 9 – ~193 seats in standard 2-class configuration
  • 737 MAX 10 – ~204 seats in standard 2-class configuration

You can see why I consider the MAX 8-200 a half variant. It’s a MAX 8 with one additional pair of doors to allow for the increased number of people to be able evacuate fast enough in case of emergency.

Of these models, the MAX 8, MAX 8-200, and MAX 9 have been certified and are flying regularly with airlines all over the world. The MAX 7 and MAX 10 are still awaiting FAA certification, and they are bumping up against a significant deadline that Boeing is now going to miss.

It all goes back to the original deadly design of the MAX’s MCAS system which continuously tried to crash the airplane in certain situations, something it tragically succeeded at doing… twice. Out of that, two things were learned that have a direct impact on the MAX 7 and MAX 10 certification.

First, the FAA was simply not doing its job. It had basically handed over the keys to Boeing to self-certify in certain areas. To call the oversight lax would likely be an understatement. Second, the 737’s lack of an Engine Indicating and Crew Alerting System (EICAS) created confusion in the cockpit as the pilots tried to isolate exactly what was happening. The feds wanted to fix both these things.

The FAA has already been given the mandate to step up certification processes, and it has most certainly raised the bar since the original MAX certification. Whether it’s a good method or not now is neither here nor there. It’s just a lot more work to get certified now.

As for the EICAS, well, there has long been a push toward having that system on airplanes. In fact, the 737 is the only airplane Boeing still sells that has no EICAS onboard. It came to light during the two MAX accidents that the various problems and failures helped overwhelm the crew. With all the different caution lights going off, it wasn’t easy to make sense of exactly what was happening. The beauty of the EICAS is that it can organize the failures all in an easy-to-understand way. Here’s a sample:

So why doesn’t the 737 have an EICAS? Because it’s really, really old. Remember, the 737 dates back to 1967, and there was no such thing as an EICAS back then. Boeing has continued to stretch the 737 in ways never thought possible, and the biggest reason for doing that is that it has been able to keep commonality between the airplanes to minimize training and allow pilots to seamlessly switch between the different 737 models.

After seeing how this old tech — or lack thereof — contributed to the MAX accidents, Congress decided to take action. In late 2020, it passed the Aircraft Certification, Safety and Accountability Act. This required all aircraft certified two years or more after the bill passed to have an EICAS, or as the bill describes it, a “crew alerting system.” That day is rapidly approaching.

The idea at the time was this would give Boeing enough time to get the whole MAX family certified and then Boeing would finally have to create a new narrowbody when the time came for the next version. But what it didn’t take into account is that the regulatory process would get a lot tougher and more time-consuming.

Concern has been growing that the MAX 7 and MAX 10 would not be able to get certified in time. Now that is all but certain.

The FAA sent what the Seattle Times called a “scathing letter” to Boeing. In it, the FAA raked Boeing over the coals, explaining that it told Boeing it had to submit the remaining System Safety Assessments for the MAX 7 by mid-September to have a chance of getting it certified. As of mid-September, however, Boeing still hadn’t submitted anything for 6 of the required SSAs, and only 10 percent of the total had been accepted by the FAA.

So it is not happening this year.

Now, the path gets cloudy. Options appear to be:

  • Get Congress to pass a bill extending the deadline for certifying an airplane without an EICAS
  • Have Boeing modify the new models to have an EICAS
  • Have Boeing scrap the 7 and 10, something Boeing’s CEO has threatened, at least for the 10

The last option sounds like a hollow threat to me. Would Boeing really scrap the plane? I can’t imagine it would. Instead, this just sounds like the company is throwing a tantrum.

Southwest’s pilots have come out in favor of extending the deadline so that the MAX 7s (and 10s) can have the same alerting system as the other 737s.

Interestingly, the Allied Pilots Association (APA) — American’s pilots union — has come out against any sort of Congressional extension. Is it coincidental that American is the only one of the big four airlines in the US that does not have MAX 7 or MAX 10 aircraft on order? Nah, I mean, APA doesn’t seem to like helping the company anyway. Instead, APA President Edward Sicher explained it this way:

We oppose any extension of the exemption and don’t agree with Boeing’s claim that pilots could become confused when moving from an airplane without the modern alert system to one that is equipped with it. Nothing could be further from our flight deck reality,” Capt. Sicher said. “Consider the Boeing 757 and Boeing 767 – they’re substantially different airplanes, yet operate under a single certificate. Pilots have routinely flown both on the same day without any confusion.

That would certainly be an easier out. If Boeing could install some sort of EICAS in the MAX 7 and MAX 10 airplanes, APA says they can still get the benefit of the common type rating. Maybe, maybe not, but either way, it would be costly for Boeing to make those changes, so it obviously doesn’t like that option.

Either way, all we know now is that deliveries of these airplanes are in limbo. They are already long-delayed.

The MAX 7 has very few orders as it is, but there is one very important customer that Boeing needs to satisfy: Southwest Airlines. According to Cirium data, Southwest has 160 on order. This is the replacement for the 737-700s as they reach retirement age. So far, Southwest has been taking MAX 8s instead since it has no other option. Allegiant has another 30 of the MAX 7s on order.

The MAX 10, well, that’s a bigger issue for the airline. Cirium data shows the following airlines with at least 20 on order:

  • Alaska – 60
  • Delta – 100
  • flyDubai – 25
  • Gol – 30
  • Lion Air – 50
  • Qatar – 25
  • Spicejet – 20
  • United – 237
  • VietJet – 80
  • Virgin Australia – 25
  • WestJet – 42

Their orders will remain in limbo while all this plays out. If Congress doesn’t come through with an extension, these airlines may have to go with the MAX 9… or they could just move to the A321neo, something I’m sure Airbus would thoroughly enjoy.

But I’m still betting on Congress doing something. Boeing is too big and has very deep pockets. It will probably find enough people in Congress to do what it wants. Sen Roger Wicker (R-MS) has already tacked on an extension to another bill, hoping to slide it through. It’s not clear how much support this has now, but in the end, I still expect Boeing will prevail, whether that’s a good thing or not.

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13 comments on “Why Boeing Needs an Act of Congress Or Something Worse to Get the MAX 7 and 10 Aircraft Flying

  1. Given the number of foreign airlines that have the MAX 10 on order, is the US EICAS rule the only one that Boeing needs to worry about?

    Do other foreign aviation agencies have pending rules that may also require an EICAS for certification?

    1. Kilroy – I don’t think it matters. Without certification from the US, that airplane can’t be delivered to anyone.

  2. > Have Boeing modify the new models to have an EICAS

    Wouldnt an even better option be for Boeing to modify all 737 MAXes to have the new EICAS system? Then they can all meet the requirement, all the MAXes would be safer, and all of them would be perfectly common w/r/t each other? Boeing would simply have to retrofit all of the already delivered planes (to put in a system which they should have installed a long long time ago).

    1. But then all the Maxes would be different than the NGs, which is perhaps the reason why they didn’t get the system.

      1. I do believe that the type ratings are key here, and having commonality all the way through the 737 line is what Boeing is trying to maintain (and has most likely promised to any / all customers, especially those who have purchased multiple models). However, to what end are they going to go to try to attain this? Are they going to call in all of their Congressional ‘favors’ at this point to try to get the extension?

        Given that the FAA has already indicated that 2022 isn’t happening, Boeing better be looking at the possibility of the -7 & -10 needing the new EICAS. As Eric noted in a comment below, the fact that they have already installed it on the US Navy P-8s should indicate they already have the fix ready to go. It would be a matter of adding that documentation to the packages for both the -7 & -10, before final certification.

        There may be some disgruntled customers. Probably most likely SWA & UA, since they have enormous NG fleets, and already have certified MAX8s / 9s in operation. However, as APA President Capt. Sicher points out, this has been done before. It is not new territory. It may mean some operational adjustments in the short term. If Boeing went to those airlines that would have essentially ‘2 fleets’ because of this, and offered to upgrade the certified MAX8s / 9s gratis, that could generate a lot of good will for the company, and potential future sales.

  3. The P-8 Poseidon (737 NG variant) has EICAS. This isn’t something that needs to be done from scratch. Unfortunately I don’t know that this can just be a software change as all the installed hardware needs to have fault reporting suitable for either EICAS or the panel lights. Would rather the solution be retro’d to existing planes, if possible, for commonality.

  4. It is hard to imagine how Boeing could incorporate EICAS into the 757 – which is now no longer in production – as well as the 767 – which is nearing production sunset – but they couldn’t figure out how to make a transition for the 737 at some point over its 60 year (so far) run.

    I believe Congress will and should act to give Boeing exemptions for the MAX 7 and MAX 10 but they also need to make it clear that these are the last two models that will be exempted from Boeing ever. The 737 family has had a great run, it is safe to fly, but it is time for Boeing to spend the money to replace it with something newer, wider, and more advanced. WN is an advanced enough company at this point that they are going to have to deal w/ a transition from one set of cockpits to another and two in the interim; the rest of the world cannot be held hostage to WN’s unwillingess to deal w/ a two cockpit fleet.

    It is probably precisely because Boeing has been free to do alot of things on their own that the FAA should not have let them do that they are struggling to perform all of the testing and documentation work they should do.

    Finally, let’s not forget that there are significant implications esp. to WN and UA which have to keep pushing back their fleet replacement and expansion plans because of delays in getting the MAXs certified. Because these are “rolling delays,” they cannot switch everything in their MAX orderbooks to the -8 and -9 so will likely be short of capacity for 2023. Those delayed deliveries have significant implications not just for those 2 airlines but for the industry as a whole.

  5. The problems with Boeing appear endless, and are not being solved. Here we are again, “kicking the can down the road” rather than deal with the issues up front. As long as there is no change in CEO the big issues will not be solved. (Remember, the present CEO was on the board when the errors were made regarding MCAS, etc.)
    Now Boeing is moving it’s HQ out of Chicago. I get that, but why oh why move it away from the your workforce? Unless it’s to simply work closer with the DC crowd? The value of having your senior leadership in casual contact with your workforce on a daily basis appears to be totally lost here.
    Since most of the $$$ coming into Boeing presently come from military contracts that also helps explains the move to DC.
    And the fact that no one in Boeing has been held responsible for the B737 accidents is just plain wrong. The “penalties” imposed have largely been borne by their insurance companies, and so they are getting away virtually Scott free!
    I’m old enough to remember the Boeing of halcyon days – they were held in high regard globally. No longer! IMHO most airline execs will tell you that they do not want to see just one major supplier of aircraft – that’s not in anyone’s interests. We need Boeing, and we equally need Airbus! Without accepting responsibility and taking positive corrective action Boeing’s reputation globally will not recover. As long as the Feds/Congress keep supporting Boeing in this manner (granting an extension to allow them certify these new versions) they continue to exacerbate the problem, and Boeing will never regain its global reputation.
    It’s a dreadful situation, and we keep getting further and further away from a solution. Very sad

    1. To be fair Chicago wasn’t that close to the workforce either. And FWIW, Boeing Commercial Airplanes, which sells the 737s is based near Renton, WA. (Its in Tukwila I believe.)

      Oh, and I’m sure Boeing’s insurance companies have raised their rates, so Boeing is not getting off scott free.

  6. @ejwpj-

    I think you hit the nail on the head, with figuring that Boeing moved to the DC area to be closer to the Military Industrial Complex on the beltway. It should go to reason that, particularly during the pandemic, their revenue stream has been much more stable on the government side of the house. The commercial side, including this present certification issue, shows that there is a lot of variability. So, move to where your most stable customers are, and continue to grease that wheel!

    I also agree with your comment re: “the Boeing of halcyon days” – my dad was a commercial airline pilot for 31 years, and flew multiple Boeing models (707, 747, 727 & 757), and a couple from MD (DC10 & MD80). He always said that Boeing built the best, most reliable aircraft. I wonder what he would say now?

    IMHO I believe that a big part of Boeing’s current issue lies with the MD merger, and bringing over many of their top-tier executives. And, a stream of executives from GE. I also feel like they need to deal with the issues at hand, and not ‘kick the can down the road’!!

  7. I think there is fault on both sides, at Boeing and at the FAA. I find it disingenuous at best that the FAA was content to use a MAX-7 aircraft for its MCAS resolution platform program, an aircraft that has completed an around-the-world sales demo campaign at the planet’s most challenging airports, only to then decline certification of same. The FAA knows it’s a perfectly safe aircraft. The aircraft could have, and SHOULD have, been in revenue service today.

    Boeing’s list of MAX program failures is lengthy and well-documented here and in multiple media outlets around the country. Their lack of transparency is stunning, both legally and morally. Pilots need to be aware of, and train on, all aircraft systems in normal, abnormal and emergency conditions. There should have been a “Master Caution” (what the 737 family uses instead of EICAS) for MCAS or a “Memory Item” for Runaway Trim and a full checklist for the problem in the QRH (Quick Reference Handbook).

    Boeing now faces either a political battle to maintain the 737 status quo or capitulation on EICAS. If they go with EICAS on the MAX-7 and MAX-10, they have no present guarantee that it will remain the same Type Rating as the MAX-8 and MAX-9. If the FAA determines a “differences training” event will suffice, Boeing will pony up the money for its customers to train their Pilots on EICAS. If, however, the FAA determines that the MAX-7 and MAX-10 require a different Type Rating from the other MAX and NG aircraft, then all bets are off. That could end the sole source relationship that Southwest has with Boeing.

    Southwest, in particular, is over the barrel here. So much is at stake for them. As noted above, they need airplanes….lots of airplanes. So far, they appear content taking MAX-8s instead of MAX-7s. But they need the MAX-7 in their fleet to perform missions the MAX-8 cannot do. Things like DEN-Hawaii, far South America, or BWI-Europe. In other words, some of their current and future plans are predicated on taking the MAX-7. Beyond that, they need the fuel savings of operating the MAX-7 on existing domestic routes. So they are in quite a predicament here.

  8. Congress will have its own reputation to worry about (as low as it already is). Creating a safety rule then keep exempting it for a specific company just shows insincerity of both towards safety of the travelers.

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