Lawmakers Demand Fresh Investigation into FAA Decision Not to Penalize Boeing for MAX Failures
Feb. 15—Leading congressional Democrats have asked the Department of Transportation Inspector General's Office to review what they see as the Federal Aviation Administration's failure to hold Boeing accountable for serious lapses that contributed to the two 737 MAX crashes.
U.S. House Transportation chair Rep. DeFazio, D- Ore., and aviation subcommittee chair Rep. Rick Larsen, D- Everett — who led a high-profile investigation into the crashes and made public key internal Boeing documents that revealed substantial failures — are pushing for civil action against Boeing and potentially against individual employees.
Dissatisfied with a response last month from FAA Administrator Steve Dickson about two specific concerns, DeFazio and Larsen sent a letter Friday asking DOT Inspector General Eric Soskin to intervene.
"We respectfully request that you review FAA's refusal to exercise proper oversight over
Boeing's apparent misconduct," the letter states.
In an interview, DeFazio said he is "concerned about what is going on deep within the FAA."
Following the 1992 crash of Valujet Flight 592 in Florida that killed 110 people, DeFazio, then a young congressman, was instrumental in inserting into a FAA reauthorization bill language that made clear safety must be the agency's top priority and stripped out the mandate that it should promote the U.S. aviation industry.
"It took years to wring that out of the culture," DeFazio said. "I'm afraid it kind of crept back in."
Last November, DeFazio and Larsen wrote to the FAA's Dickson asking what the agency had done about two egregious decisions at Boeing that were identified in a House investigation into the 737 MAX crashes in Ethiopia and Indonesia, which killed 346 people:
* A year before the first crash, of a Lion Air MAX, Boeing had discovered a glitch that meant the alert that told pilots there was something wrong with the angle of attack sensor on the jet wasn't working on 80% of the MAXs delivered. Yet Boeing didn't fix it, delivered the planes with the alert inoperative and did not tell the FAA or its MAX customers until after the crash.
* Participants in a 2013 internal Boeing meeting, early in the MAX's development, agreed to downplay to the FAA and other regulators the significance of the flight control software that later triggered the crashes — the Maneuvering Characteristics Augmentation System. They agreed to avoid using the term MCAS outside the company in case its novelty prompted the FAA to require more testing and pilot training.
In both instances, Boeing employees who were acting as the FAA's authorized representatives went along with those decisions.
Following the two MAX crashes, DeFazio said, "it just boggles the mind that there weren't and haven't been more consequences for individuals who were involved."
FAA response
On the failure to disclose the inoperative "Angle of Attack Disagree" alert, DeFazio's letter to Dickson cited his predecessor, acting FAA Administrator Dan Elwell, who in 2019 testified that this alert was part of the MAX's certified design and so was required to be installed and functional.
"To date, we are unaware of any actions the FAA has taken to hold Boeing accountable for violating the approved type design of the 737 MAX," the letter states.
On the 2013 internal meeting, DeFazio asked Dickson if the FAA had investigated Boeing's efforts to downplay MCAS and "What, if anything, has FAA done to hold any of the individuals at Boeing accountable?"
Dickson responded to the House letter in January, but his brief answers left DeFazio very dissatisfied.
Dickson focused on the changes the FAA has made to ensure that the airplane certification system is more rigorous in the future and its oversight of Boeing more stringent.
Its certification of Boeing's fix that got the MAX re-approved to return to service was painstaking and prolonged. Likewise, the extreme scrutiny the agency has fixed on the forthcoming 777X has pushed out certification to late 2023 at the earliest.
The FAA recently issued new guidance designed to protect its authorized representatives at companies like Boeing from interference by business managers.
However, the FAA has not focused on penalizing what happened during the MAX's development.
Dickson said the FAA had taken no action against its authorized representatives within Boeing who decided not to fix the angle of attack alert "since they followed their approved process" and had judged the inoperative alert wasn't a safety issue.
As for the allegations about the 2013 meeting, Dickson said the FAA deferred to the Department of Justice, which investigated potential criminal conduct.
With that inquiry still open and other independent panels having weighed in, "the FAA did not pursue investigations or actions against individuals within the Boeing Company," Dickson wrote.
DeFazio complained in last week's letter to the inspector general that the " FAA did not substantively respond" to his inquiry. He said the response did not address why Boeing failed to tell the FAA or its customers about the inoperative alert.
And he wrote that "the blatant lack of enforcement actions" for not complying with the certified design "could encourage manufacturers to ignore their approved type design in the future."
And he didn't accept that the FAA cannot pursue civil penalties separate from any Department of Justice criminal investigation. He called that a "baffling" excuse.
In a response to a follow-up query, the FAA elaborated on why the decision not to fix the angle of attack alert didn't trigger fines or other civil enforcement against Boeing.
The FAA said the alert's being inoperative meant it was not in conformance with the design certificate, which the FAA issues to approve a plane to safely fly passengers. "That became a non-conformity with the type design, which differs from a regulatory violation that could lead to enforcement," the FAA wrote via email.
But a former lawyer at the FAA said there is no legal distinction between a "non-conformity" with the design and a "regulatory violation."
FAA regulation 21.146 explicitly states that a holder of a certificate to build airplanes must ensure that each plane built "conforms to its approved design."
The Aircraft Certification, Safety, and Accountability Act passed by Congress in December 2020 in response to the MAX crashes explicitly reiterates that, and raises the stakes by saying that any holder of a certificate to build airplanes who knowingly violates the rule and allows a "non-conformity with approved type design" is liable for a civil penalty of up to $1 million for each airplane delivered.
The former FAA lawyer, who asked not to be named because he is pushing for change at the FAA out of public view, said "the notion that a nonconformance with the type design is not a regulatory violation is legally incorrect."
The FAA has the power to issue civil fines to Boeing or other companies for not abiding by regulations, although often the fines are relatively small. Likewise, Boeing employees who act as authorized representatives of the FAA have to be approved in their positions by the agency and that approval can be withdrawn at any time.
A year ago, the Department of Justice criminally charged Boeing and fined it $244 million for the actions of 737 MAX technical pilot Mark Forkner who concealed from the FAA changes that were made to MCAS late in its development that made it more dangerous.
But to date, the FAA has not taken civil action against Boeing or any of its employees.
"I don't think the consequences have been anywhere near adequate higher up in Boeing," DeFazio said.
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