Inside the convoluted politics of certifying the last 737 Max models

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Two days before the 737 Max returned to service in the U.S. in December 2020, President Donald Trump signed an expansive omnibus spending package laden with last-minute legislative priorities crammed into its 5,593 pages. The bill was filled with everything from funds for the U.S. mission in Afghanistan and pandemic recovery to regulations on flammable fabrics and Pacific salmon populations.

It also codified the end of the Boeing 737.

Among the provisions of the included Aircraft Certification Reform and Accountability Act, the Federal Aviation Administration was given a clear limit. Within two years, the FAA administrator would be prohibited from approving any transport category aircraft that lacked a centralized crew alerting system, like those found on every contemporary Boeing airliner – except the 737 Max.

That system’s absence on the Max was viewed as a contributor to cockpit confusion that led to the 2018 and 2019 crashes and spawned formal recommendations from the National Transportation Safety Board and the language in the bill. If the certification of either the 737 Max 10 and Max 7 – the largest and smallest Max derivatives – isn’t completed by year end, Boeing will be required to heavily modify the cockpit design.

Related: Pentagon has quietly growing doubts about Boeing’s direction

That would split the 737 into two branches, something Boeing and its customers have pushed to avoid for more than half a century. One branch is an aircraft with a legacy alerting system that dates to 1967 and stretches across multiple generations to the 737 Max 8, Max 9 and Max 200, currently flying. And another with a completely different system, requiring a dedicated pilot corps that likely won’t switch back and forth between the 737 Next Generation family, the Max 8 and 9 and Boeing’s yet-to-be-certified Max 7 and 10.

It is the FAA’s explicit position that its hands are tied by the language in the law, according to the agency’s Assistant Administrator for Communications, Matthew Lehner. Any relief from the provision (known as Section 116(b)) requiring Boeing’s Engine Indicating and Crew Alerting System, or EICAS, on the Max 7 or 10 after December 21, 2022, must come from an amended law passed by both houses of the U.S. Congress and signed by the president.

Yet, given this legislative deadline – one Boeing was fully aware of in the months leading up to its 2020 passage – the final stretch in certifying the last two 737 Max derivatives is fraught with risks that have far less to do with the airplanes and their design, and far more to do with the company’s standing in the halls of power in Washington, D.C., its new corporate home.

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