Wake Forest Law Review
11Feb

FAA Rescinds Order Grounding Jets, 737 MAX Aircraft Return to Flight

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By Steven P. Bradford

Following crashes of Lion Air Flight 610 and Ethiopian Airlines Flight 302, the Federal Aviation Administration (“FAA”) issued an Emergency Order grounding Boeing 737-8 and -9 (“Boeing MAX”) aircraft.[1]  The order was rescinded on November 18, 2020, allowing Boeing MAX aircraft to resume flight operations once airlines complete prescribed corrective actions to remedy the system identified as the common cause in the two accidents.[2]  While detecting and rectifying the faulty system will prevent future mishaps, it is incumbent upon rule-makers to identify processes that allowed a faulty system to be certified.

In developing a fuel-efficient replacement for the 737,[3] Boeing filed patent applications in 2009 for a new aircraft design with an elliptically-shaped fuselage.[4]  In 2010, Boeing’s primary competitor, Airbus, unveiled fuel-efficient engines for incorporation onto existing airframes.[5]  Anxious that Airbus would corner the market on fuel-efficient aircraft, Boeing pivoted to modify its 737 design rather than design a new aircraft.[6]  This strategy saved time in the design process, and shortened the certification timetable.[7]  Certification of new designs can take up to nine years,[8] but amended type certificates, granted to aircraft modified from already certified designs,[9] takes three to five years.[10]  Boeing did not have time to design and certify a new aircraft with an elliptically-shaped fuselage; rather, Boeing had to modify its existing 737 design and pursue an amended type certificate to remain competitive.[11]  To further expedite the certification process, Boeing made use of a program authorized by federal statute called Organization Designation Authorization (“ODA”), which aims to increase efficiency and decrease FAA workload[12] by delegating aspects of the certification process to external organizations, including the manufacturer.[13]  

As a result, the Boeing MAX received an amended type certificate in March 2017,[14] only a year after Airbus’s fuel-efficient aircraft entered service.[15]  However, this shortened process contributed to the crash of two aircraft in two years of flight operations. Investigations identified multiple factors contributing to the mishaps, including the amended type certification process.[16]  This incident raised the question: at what point do amendments to an existing design become so significant that the aircraft should be treated as a new design?[17]

New type certificates are required if “the FAA finds that the proposed change in design . . . is so extensive that a substantially complete investigation of compliance with the applicable regulations is required.”[18]  Conversely, the Changed Product Rule authorizes the granting of amended type certificates if the FAA determines changes are not significant.”[19]  Significant changes are those where the general aircraft configuration is not retained, or assumptions used in the previous certification are no longer valid.[20]  To clarify this nebulous standard, the FAA published a non-exhaustive list of significant versus non-significant changes.[21]  However, federal regulation still does not clearly distinguish significant from non-significant, or delineate between amendments and new designs.  In fact, representatives from the FAA, NASA, and civil aviation authorities from several countries found that “there are no criteria for determining when the core attributes of an existing design make it fundamentally incapable of supporting [] advancements . . . and therefore warrant consideration of a . . . certification under a new type certificate.”[22]

Determining whether a change is significant is further complicated by the ODA program, delegating aspects of certification to the manufacturer.  Here, the FAA delegated to Boeing testing of the Maneuvering Characteristics Augmentation System (MCAS) integrated into the flight controls, later found to be responsible for the Lion Air and Ethiopian Airlines accidents.[23]  As MCAS proceeded through certification at Boeing, it was tweaked, made more robust, and given greater authority to move flight control surfaces without pilot input.[24]  However, communication between Boeing working groups and with the FAA was so poor that the FAA did not fully understand the extent of changes made to MCAS since it was first disclosed, nor the authority it had over flight control surfaces.[25]  Had the FAA been aware of MCAS’s ultimate capabilities, it likely would have required additional evaluation.[26]  Simply put, poor communication left the FAA unaware of the MCAS capabilities and unable to accurately determine whether its inclusion in Boeing MAX aircraft constituted a significant change from previous 737s.  While ODA programs are not inherently flawed,[27] poor communication and institutional pressure impaired the decision making of ODA representatives tasked with certifying systems and components on behalf of the FAA.[28]

The proposed Aircraft Certification Reform and Accountability Act seeks to better define what constitutes a significant change.  The act asks the FAA to weigh whether modifications to flight control systems should preclude the issuance of an amended type certificate,[29] essentially asking if all flight controls modifications should be classified as “significant” changes.  The act directs the FAA to “improve the process of issuing amended type certificates,”[30] but does not mandate specific procedural changes.  While acknowledging clarification is necessary, the FAA stated that future research and coordination is required before making any changes to certification policy.[31]  Therefore, changes to 14 C.F.R Subpart B  governing certifications are still several years away, based on timelines set forth in the proposed act.[32] Much of the act discusses cultural changes to the FAA and aircraft manufacturers in an effort to foster greater collaboration between working groups, urging a holistic approach to aircraft design to understand how changes to one system will affect other systems.  In addition to cultural changes, the support the act has received thus far, as well as congressional and FAA finding detailed in reports written after the grounding of Boeing MAX aircraft, procedural changes to the certification process should be anticipated in the future.

[1] U.S. Dep’t of Transp., FAA Emergency Order of Prohibition 2 (Mar. 13, 2019), https://www.faa.gov/news/updates/media/Emergency_Order.pdf.

[2] U.S. Dep’t of Transp., FAA Recission of Emergency Order of Prohibition 1–2 (Nov. 18, 2020) https://www.faa.gov/foia/electronic_reading_room/boeing_reading_room/media/737_MAX_Rescission_of_Grounding_Order.pdf. See also Airworthiness Directives; The Boeing Company Airplanes, 85 Fed. Reg. 47698 (Aug. 6, 2020) (to be codified at 14 C.F.R. pt. 39); FAA Notice 8900.570, at 2 (Nov. 18, 2020), https://www.faa.gov/documentLibrary/media/Notice/N_8900.570_FAAWeb.pdf.

[3] Boeing Firms Up 737 Replacement Studies by Appointing Team, Flight Global (Mar. 3, 2006), https://www.flightglobal.com/boeing-firms-up-737-replacement-studies-by-appointing-team/66022.article.

[4] U.S. Patent Application No. 12/624,322 (filed Nov. 23, 2009).

[5] Press Release, Airbus, Airbus offers new fuel saving engine options for A320 Family (Dec. 1, 2010), https://www.airbus.com/newsroom/press-releases/en/2010/12/airbus-offers-new-fuel-saving-engine-options-for-a320-family.html.

[6] Darryl Campbell, Redline: The many human errors that brought down the Boeing 737 Max, The Verge (May 2, 2019), https://www.theverge.com/2019/5/2/18518176/boeing-737-max-crash-problems-human-error-mcas-faa.

[7] Id. See generally 49 U.S.C. § 44704(a) (outlining requirements for type certificates).

[8] Airworthiness Certification, FAA (Dec. 6, 2019), https://www.faa.gov/aircraft/air_cert/airworthiness_certification/.

[9] Amended Type Certificate, FAA (Aug. 10, 2011), https://www.faa.gov/aircraft/air_cert/design_approvals/amend_tc/; FAA Order No. 8110.4C ch. 6, at 87 (Oct. 12, 2005), https://www.faa.gov/documentLibrary/media/Order/FAA_Order_8110_4C_Chg_6.pdf.

[10] Airworthiness Certification, supra note 8.

[11]Campbell, supra note 6.

[12] FAA Order 8100.15A (June 10, 2011), https://www.faa.gov/documentLibrary/media/Order/8100.15A.pdf.

[13] See 49 U.S.C. § 44702(d).

[14] Press Release, Boeing, Boeing 737 MAX 8 Earns FAA Certification (Mar. 9, 2017), https://boeing.mediaroom.com/2017-03-09-Boeing-737-MAX-8-Earns-FAA-Certification; Firdaus Hashim, Malindo Operates World’s First 737 Max Flight, Flight Global (May 22, 2017), https://www.flightglobal.com/malindo-operates-worlds-first-737-max-flight/124109.article.

[15] Andreas Spaeth, Onboard Lufthansa’s First Airbus A320neo Flight, Airways Magazine (Jan. 25, 2016), https://airwaysmag.com/traveler/lufthansa-first-airbus-a320neo-flight/.

[16] Staff of H. Comm. on Trans. and Infrastructure, 116th Cong., The Design, Development, & Certification of the Boeing 737 MAX 12–14 (2020), https://transportation.house.gov/imo/media/doc/2020.09.15%20FINAL%20737%20MAX%20Report%20for%20Public%20Release.pdf.

[17] See id. at 43–45.

[18] 14 C.F.R. § 21.19 (2020).

[19] 14 C.F.R. § 21.101 (2020); see Joint Auths. Tech. Rev., Boeing 737 MAX Flight Control System Observations, Findings, and Recommendations 6–11 (2019) (referring to the applicable sections of the C.F.R. as the Changed Product Rule).

[20] 14 C.F.R. §21.101(b)(1); FAA Order 8110.48A, at 4-2 (July 21, 2017), https://www.faa.gov/documentLibrary/media/Order/FAA_Order_8110_48A.pdf.

[21] FAA Advisory Circular 21.101-1B appx. A. (Mar. 11, 2016) https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_21.101-1B.pdf.

[22] Joint Auths. Tech. Rev., supra note 19, at 7.

[23] Id. at 26. A description of the system implicated in the two mishaps exceeds the scope of this discussion.  However, for a brief, non-technical overview of the Maneuvering Characteristics Augmentation System (MCAS) identified by the FAA as the common cause of the Lion Air and Ethiopian Airlines accidents, its intended function, interaction with pilot inputs, and its effects on flight characteristics, see Campbell, supra note 6.

[24] Staff of H. Comm. on Trans. and Infrastructure, supra note 16, at 103; Jack Nicas et al., Boeing Built Deadly Assumptions in 737 Max, Blind to a Late Design Change, N.Y. Times (June 1, 2019), https://www.nytimes.com/2019/06/01/business/boeing-737-max-crash.html (noting that when initially designed, MCAS could only move the stabilizer approximately 0.6 degrees, but when certified, MCAS could move the stabilizer up to 2.5 degrees).

[25] Joint Auths. Tech. Rev., supra note 19, at 13–14.

[26] Id. at 13–14, 23–24.

[27] Joint Auths. Tech. Rev., supra note 19, at VII (noting that the act of delegating testing and evaluation to industry representatives is a well-established practice for the majority of civil aviation administrative bodies around the world).

[28] Id. at VII; Staff of H. Comm. on Trans. and Infrastructure, supra note 16, at 56–84 (discussing FAA oversight of the certification process and delegation of authority to Boeing).

[29] Aircraft Certification Reform and Accountability Act, H.R. 8408, 116th Cong. § 18(b)(3) (2020).

[30] H.R. 8408 § 18(b)(2) (2020).

[31] FAA, Summary of the FAA’s Review of the Boeing 737 MAX: Return to Service of the Boeing 737 MAX Aircraft 75 (2020), https://www.faa.gov/foia/electronic_reading_room/boeing_reading_room/media/737_RTS_Summary.pdf.

[32] H.R. 8408 § 18(b) (2020) (setting a deadline of 18 months after enactment for the FAA to submit a report to Congress regarding amended type certificates, and 24 months to improve the process of issuing amended type certificates).

Post Image: Undelivered Boeing 737 MAX aircraft that were grounded by aviation agencies, seen at parking lot at Boeing Field in Seattle, Washington, in April 2019. Via Wikimedia Commons.          

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14Feb

Now Checking Emotional Support Animals: DOT Regulation Redefines Service Animals

Categories: Current Issues Blog
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By Corinne Spencer

After recent news stories covering the emotional support peacock stopped by airport security and the attack by an emotional support dog that left a Delta passenger with 28 stitches, the Department of Transportation (DOT) is giving airlines the regulatory means to crack down on any and all pets boarding planes unchecked under the label “emotional support” animals (ESAs).

The Americans with Disabilities Act (ADA) protects owners and their animals from discrimination in public places by requiring most restaurants, hotels, and public services to accommodate the presence of service animals.[1] For purposes of the ADA, service animals are narrowly defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[2]  It does not cover ESAs which can be “certified” by various entities without any formalized training required in order to gain designation entitled to some other protections.[3]

The Air Craft Access Act (ACAA) extends similar rules to air transportation allowing passengers with service animals to fly with their animal in the cabin.[4]  However, the ACAA currently provides a broader definition of service animal than the ADA by including more species of animals and includes ESAs.[5]  This overbroad coverage without distinction between types of aid created a loophole many people take advantage of to designate their pets as ESAs and bring them onto planes under ACAA protection, even if they were not the anticipated beneficiary.

The ACAA guidelines for service animals and ESAs  on planes diverge from the general rules for pets on planes which place limitations on size, species, and breed of pet allowed in the cabins.[6]  General airline pet policies require most pets to be held in a cargo space on planes, which is pressurized for their safety and often considered more comfortable for pets because they are not cramped in small spaces with human travelers.[7]  These policies are intended to promote safety, ease of mobility, and accessibility for others in the plane cabin.  However, many pet owners view it as an inconvenience to travel separately. Under the ACAA, service animals are exempt from the policies affecting pet travel and are instead allowed to travel with their owners in the airplane cabin.[8]  The protections provided to service animals under the ACAA were created under the expectation that service animals are highly and specially trained and thus would not raise some of the same concerns as normal pets, such as attacking passengers or defecating in the aisle.  However, since ESAs receive the same ACAA protection to travel in plane cabins without the same level of training and behavioral obedience required of and demonstrated by service animals, this category of pets has caused major disturbance in terminals and in the air.[9]

Many pet owners began registering their average pets through the National Service Animal Registry or similar registries as ESAs and received certification without meeting any requirements or qualifications.[10] This registry’s site explains that any animal can be an emotional support animal, and they “do not need any specific training because their very presence mitigates the symptoms associated with a person’s psychological/emotional disability.”[11] This certification gets pets access to most flights in cabin under a pseudo-service animal identity. However, when these untrained pets defecate in public spaces, attack bystanders, or cause a scene in the way trained service animals would never do, their legitimacy is questioned.[12] Unfortunately, this has impacted the reputation of service animals as well, making some businesses unwilling to accommodate both types of animals, and sometimes explicitly discriminating against legitimate disabled individuals with service animals.[13]

Through the FAA Reauthorization Act of 2018, Congress specifically asked the DOT to implement new definitions and minimum standards for “service animals” in an effort to clear up the currently broad ACAA. [14]  The DOT has responded with a notice of proposed rulemaking (NPRM) to amend the ACAA guidelines to clarify what qualifies as a service animal and allowing airlines to more readily distinguish between true service animals, ESAs, and regular pets. This would ensure those intended to be protected by the ACAA are protected and also close the loophole that caused this problem to begin with. The DOT proposed regulation, titled, “Traveling by Air with Service Animals” redefines the category of protected animals and offers airlines the ability to set restrictions and ask more questions regarding ESAs.[15] The regulation hopes to respond to requests for clarity in policy, consistency between the ADA and ACAA as well as consistency across the airline industry.

First, the DOT seeks to redefine service animal similar to the ADA as “a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[16] Additionally, it specifies Service Animal Handlers as qualified individuals with a disability or their safety assistant, to further limit the use of service animals to passengers with disabilities. [17]  In turn, airlines could distinguish between service animals and ESAs, placing ESAs in the same category as pets.[18]

Second, the regulation sets a guideline for approved species. The DOT proposes that service animals be limited to dogs. While it considered miniature horses and capuchin monkeys as secondary options, both were rejected qualifying “service animal” status based on airplanes’ practical space limitations and close quarters, and comments highlighting the rarity at which these animals serve as service animals for traveling individuals.[19] It’s worth noting that this only means that airlines need not permit them unconditionally. Any airline may still accept these animals on board if they choose through make broader policies than the ACAA minimum requirements.[20]  Additionally, the DOT decided against breed restrictions in favor of an exception for airlines to always refuse service if any animals pose a health or safety threat.[21]  The DOT is still collecting comments on the need for any more limiting restrictions.

The NPRM proposes other general limitations to allow airlines to prioritize the safety of its passengers and staff. These include a tethering requirement so long as it does not interfere with the animal’s service, limitations protecting only one or two service animals per passenger with a disability, and a short list of reasons for which a passenger with a disability and her service animal can be refused service.[22]

The most burdensome impact of the new regulation is a requirement of government-issued forms to fly with a service animal and provide proof of the animal’s training and qualifications. [23]  While this burden will fall on passengers traveling with service animals, it will likely be outweighed by the freedom and safety those passengers and their service animals will enjoy due to the NPRM’s far reaching restrictions on other animals. By reducing the number of unqualified animals flying freely, service animals will face fewer distractions and dangers, while also being able to reclaim their positive reputation that has been stained by ESAs trying to bend the rules.

[1] 42 U.S.C. § 12182(a) (2018).

[2] 28 CFR § 35.104 (2016).

[3] U.S. Dep’t of Justice, Frequently Asked Questions about Service Animals and the ADA 2 (2015), https://www.ada.gov/regs2010/service_animal_qa.pdf.

[4] 49 U.S.C. § 41705 (2018); 14 CFR § 382.117 (2009).

[5] See 14 CFR § 382.117(f) (requiring miniature horses, pigs and monkeys to be accepted unless specific factors find the airline unable to do so, however, listing snakes, spiders, ferrets, and reptiles as species that never need to be recognized as service animals).

[6] See Pets, American Airlines, https://www.aa.com/i18n/travel-info/special-assistance/pets.jsp (last visited Feb. 1, 2020); Pet Travel on Delta, Delta, https://www.delta.com/apac/en/pet-travel/overview (last visited Feb. 1, 2020).

[7] See Pet Travel Decisions: Questions About Flying Pets in Cargo, Pet Relocation (Dec. 2011), https://www.petrelocation.com/blog/post/pet-travel-decisions-questions-about-flying-pets-in-cargo; Airline Pet Travel in the Cargo Hold, PetTravel.com, https://www.pettravel.com/news_pet_travel_airline_cargo.cfm (last visited Fed. 3, 2020).

[8] For example, airlines with size or weight restrictions on in-cabin pets cannot impose those limits on service animals. See, e.g., Delta, supra note 6 (“If your pet doesn’t fit in a carrier in the seat in front of you, you can ship your pet with our special shipping service Delta Cargo. Remember, special exceptions apply for passengers traveling with service animals”).

[9] See Paulina Firozi, An ‘Emotional-Support Dog’ Attacked Him on a Flight. He’s Suing Delta and the Owner, Wash. Post (May 29, 2019, 4:09 PM), https://www.washingtonpost.com/transportation/2019/05/29/an-emotional-support-dog-attacked-him-flight-hes-suing-delta-owner/; Hugo Martín, Emotional Support Animals Snap, Bark, and Cause Disruption, Most Flight Attendants Say, LA Times (Sept. 15, 2018, 10:00 AM), https://www.latimes.com/business/la-fi-travel-briefcase1-emotional-support-animals-20180915-story.html.

[10] Dawn Gilbertson, American Airlines Flight Attendant Bitten by Emotional Support Dig, Requires Five Stitches, USA Today (July 23, 2019, 6:05 PM) (“Critics have complained passengers are able to get instant certification for an emotional support animal, also called a comfort animal, online, and that many aren’t properly trained.”)

[11] Nat’l Serv. Animal Registry, https://www.nsarco.com/esa-registration-and-your-legal-rights.html (last visited Jan. 24, 2020).

[12] See Firozi, supra note 9; Marina Pitofsky, Flight Delayed After Woman Brings ‘Emotional Support Squirrel’ on Plane, USA Today (Oct. 10, 2018, 7:11 AM).  In 2018, a USA Today reporter noted the urge for DOT to regulate emotional support animals recognizing that https://www.usatoday.com/story/news/nation/2018/10/10/orlando-florida-flight-delayed-after-woman-brings-squirrel-plane/1587164002/.

[13] See, e.g., Katrina Tilbury, Fake Service Dogs, Real Problems, AP News (May 16, 2018), https://apnews.com/1a28f8e528424fdca2040ea8139e3014/Fake-service-dogs,-real-problems.

[14] See Traveling by Air with Service Animals, 84 Fed. Reg. 6448, 6451 (proposed Feb. 5, 2020) (to be codified at 14 C.F.R. Part 382); The FAA Reauthorization Act of 2018, Pub. L. No. 115-254, Sec. 437 (October 5, 2018). 

[15] Traveling by Air with Service Animals, 85 Fed. Reg. at 6448.   

[16] Id. at 6474.

[17] Id.

[18] Id. at 6458.

[19] Id. at 6453–54.

[20] Id. at 6458. (“[w]hile the Department proposes to allow airlines to treat emotional support animals as pets rather than service animals, airlines could choose to continue to recognize emotional support animals and transport them for free pursuant to an airline’s established policy.”)

[21] Id. at 6464–65.

[22] See id. at 6476.

[23] Id. at 6475.

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