Opposition grows to safety exemption for another Boeing MAX jet

SEATTLE — Following the grounding of Boeing’s 737 MAX 9s after the serious in-flight incident on Alaska Airlines Flight 1282, opposition is growing to Boeing’s petition for a safety exemption that it needs to certify the next, smallest model of the same jet family, the 737 MAX 7.

With political pressure mounting on the Federal Aviation Administration amid a newly tense and emotional debate surrounding Boeing’s adherence to safety standards, prominent U.S. Senators Tammy Duckworth, D- Illinois, and Maria Cantwell, D- Wash., came out Thursday against granting the exemption.

The timing of that airplane’s entry into service is now in serious doubt, as is that of the follow-on MAX 10.

In December, Boeing asked the FAA to exempt the MAX 7′s engine anti-ice system from certain safety standards it fails to meet.

The FAA acknowledges that this system on the MAX has a potentially catastrophic flaw, though Boeing argues such a deadly failure is “extremely improbable” and that a warning to pilots to turn off the system in certain circumstances is sufficient to make it safe.

The MAXs currently flying operate under that assumption. For the still-to-be-certified MAX 7, Boeing requested the exemption through June 2026 to give it time to come up with a permanent design fix for the system.

[Grounded Boeing jets are returning to the sky. Here’s what to know if you’re going to be on a MAX 9.]

On Thursday, Duckworth — who is a pilot and chair of the Aviation Safety Subcommittee of the Senate Committee on Commerce, Science and Transportation — urged the FAA to reject Boeing’s request.

“FAA should deny Boeing’s petition for an exemption and press the company to accelerate implementation of a mechanical fix to its faulty anti-ice system,” Duckworth wrote in a letter to new FAA Administrator Mike Whitaker.

In a statement later, Cantwell, chair of the Committee on Commerce, Science and Transportation, backed Duckworth’s position.

“The FAA has found that this design feature is unsafe,” Cantwell said via email. “Now is not the time to be talking about exemptions.”

Without the exemption, the MAX 7 cannot be certified to fly passengers. It had previously been expected to achieve FAA certification as early as this month and to enter service with Southwest Airlines by the spring.

But on Thursday, Southwest, by far the largest MAX 7 customer with 302 orders, said it has taken the MAX 7 out of its plans for 2024.

“There is continued uncertainty around the timing of expected Boeing deliveries and the certification of the MAX 7 aircraft,” Southwest’s Chief Financial Officer Tammy Romo said in a conference call with analysts to discuss 2023 earnings. “Our 2024 capacity plans do not currently include any MAX 7 flying.”

A potentially catastrophic flaw

After Boeing reported the engine anti-ice system defect to the FAA, the 737 MAX 8 and MAX 9 models flying passengers in the U.S. since August have had to limit use of the system.

The flaw could cause the inlet at the front end of the pod surrounding the engine — known as a nacelle — to overheat and potentially break up.

In an August Airworthiness Directive, the FAA stated that debris from such a breakup could penetrate the fuselage, putting passengers seated at windows behind the wings in danger, and could damage the wing or tail of the plane, “which could result in loss of control of the airplane.”

To avoid this dangerous overheating, the FAA directive instructed pilots that, after emerging from icy air with the engine anti-ice system switched on, they should not fly for more than five minutes through dry air before turning it off.

That’s the current protocol, and Boeing argues it should be fine to fly the MAX 7 with the same limitation.

“The 737 MAX has been in service since 2017 and has accumulated over 6.5 million flight hours. In that time, there have been no reported cases of parts departing aircraft due to overheating of the engine nacelle inlet structure,” Boeing’s filing states.

Technically, the FAA cannot certify a jet to fly passengers if it doesn’t meet all safety standards, though it can grant an exemption to some specific rules.

Yet critics resist the idea of granting an exemption for a flaw that is potentially catastrophic.

Before the latest MAX 9 incident, the Allied Pilots Association, the union representing 15,000 American Airlines pilots, expressed serious concern.

APA spokesperson Dennis Tajer said that with no alert on the instrument panel to tell the pilots the system should be turned off, depending on the pilots to not forget to do so is not good enough.

After the Alaska Airlines MAX 9 incident this month when a door-sized panel blew out of the fuselage at 16,000 feet over Portland — which Duckworth noted “could have been catastrophic” — the granting of the exemption has become a hot political issue.

In her letter to the FAA, Duckworth referenced both the two MAX 8 crashes that killed 346 people five years ago and this month’s Alaska incident.

“Simply put, FAA has certified two MAX variants to date — and both variants ended up grounded,” Duckworth told Whitaker. " Boeing and FAA are 0 for 2 in the design and certification of 737 MAX variants free of potentially deadly safety flaws.”

She urged Whitaker to improve the FAA’s “inconsistent record” of enforcing safety standards and to hold Boeing accountable.

The impact of the Alaska Airlines incident has been far-reaching for Boeing.

Southwest’s decision to take the MAX 7 out of its plans appears to be simply a recognition of the reality that the airline cannot be sure to get it this year.

Likewise, on Tuesday, United Airlines CEO Scott Kirby said that carrier is taking the MAX 10 out of its fleet planning. This model, the largest variant of the MAX, was expected to follow the MAX 7 next year.

“We are not canceling the order,” Kirby said on CNBC. “We’re taking it out of our internal plans, and we’ll be working on what that means exactly with Boeing.”

[Alaska Air execs say they want Boeing to reimburse at least $150M]

That could mean United will switch the order to smaller MAXs. Or it could order the Airbus A321 instead.

With the MAX 9 grounding, the FAA has told Boeing it cannot increase MAX production until it has its quality management under control.

Former Boeing manager and whistleblower Ed Pierson, who set up a lobbying group called the Foundation for Aviation Safety following the two deadly MAX crashes, submitted a formal objection to Boeing’s exemption request in December.

This week, Pierson sent a new letter to the FAA renewing the objection and noting that in reviewing the federal database that logs reports of in-flight incidents, the foundation found multiple failures of the engine anti-ice valve that regulates the system’s heated airflow.

His letter cites two such failures on United MAXs this month that resulted in unscheduled landings. Another Jan. 16 report describes “a bubble-shaped defect and cracks on the outer side of the #1 engine inlet cowl on a Southwest MAX.”

Boeing said in December that “inspections are ongoing” to check for any damage to the nacelles on MAXs in service.

Tajer of the APA said in an interview Thursday the pilot union is asking American Airlines about the protocol if an engine anti-ice valve is stuck open so that the system is on and the pilot cannot turn it off.

The current checklist for that scenario doesn’t tell the pilot to land at the nearest airport, and yet that seems to contradict the instruction to not fly for more than five minutes in dry air with the system turned on.

The APA wants clarity on that.

Meanwhile, Boeing’s outlook is increasingly uncertain.