November 29, 2021

DeFazio, Larsen, and Stanton Seek Answers from FAA on Apparent Lack of Boeing Accountability for Longstanding 737 MAX Issues

 

Members ask what FAA has done to hold individuals accountable for Boeing’s apparent violation of the 737 MAX’s approved type design and Boeing’s internal plan to downplay the significance of MCAS to regulators.

Washington, DC – Today, Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-OR), Chair of the Subcommittee on Aviation Rick Larsen (D-WA) and Subcommittee on Aviation Member Greg Stanton (D-AZ) asked Federal Aviation Administration (FAA) Administrator Stephen Dickson to provide more complete responses to questions he was asked at a subcommittee hearing last month regarding efforts to hold Boeing accountable for two key issues regarding the 737 MAX. In the letter sent to FAA Administrator Dickson today, the Members asked what FAA has done, if anything, to hold Boeing employees who were responsible for Boeing’s apparent violation of its approved 737 MAX type design, as well as evidence of an internal plan to downplay the significance of the Maneuvering Characteristics Augmentation System (MCAS), a system connected to two deadly 737 MAX crashes, accountable. 

“[W]e are deeply troubled by the absence of rigorous accountability for Boeing’s past transgressions related to the 737 MAX and the FAA’s failure to hold those who violated the public’s trust accountable,” said the Members in the letter.

            The first issue concerns Boeing’s handling of a non-functioning Angle of Attack (AOA) Disagree alert on more than 80 percent of MAX aircraft. After discovering the problem in August 2017, Boeing decided to wait nearly three years to fix the issue. In the meantime, Boeing continued to produce MAX aircraft with the nonfunctioning alert and the company failed to notify the FAA, its 737 MAX customers, or MAX pilots that the alert was not functioning until after the Lion Air crash in October 2018. A Boeing Authorized Representative, a Boeing employee authorized to conduct work on behalf of the FAA, concurred with Boeing’s decision to delay fixing the AOA Disagree alert. However, according to a letter then-Acting FAA Administrator Dan Elwell wrote to the committee in July 2019, “Although an AOA disagree message was not necessary to meet FAA safety regulations, once it was made part of the approved type design, it was required to be installed and functional on all 737 MAX airplanes Boeing produced.”

            In today’s letter, the Members wrote, “Our committee highlighted this issue, and Boeing’s action, in our investigative report on the 737 MAX not because we believed it was a safety issue, but because it was clearly a glaring issue of lax accountability and oversight. Yet, 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, knowingly continuing to manufacture the aircraft regardless of this known defect and failing to inform your agency—or 737 MAX customers—of this nonfunctioning component on the aircraft until after the Lion Air crash.”

            The second issue addressed in the letter concerns a 2013 internal Boeing record, a copy of which was enclosed as part of the letter and can be found here, that was initially released as part of the committee’s investigation. It documents an explicit plan within Boeing to downplay the significance of MCAS externally, including to regulators. Meeting minutes in the document explained, “[i]f we emphasize MCAS is a new function, there may be a greater certification and training impact.” This set a plan in motion to limit the use of the MCAS nomenclature externally and to downplay the system as “new,” by describing it as “an addition to Speed Trim.” Multiple Boeing employees participated in formulating the plan and a Boeing Authorized Representative signed off on the plan.

            The letter asks if FAA has spoken with the Authorized Representative who approved this plan, if FAA took any actions to hold any of the individuals engaged in formulating the plan to limit certification scrutiny and pilot training requirements accountable, and whether FAA regards the actions laid out in this plan as acceptable conduct by Boeing.

            “We would like to know what, if any, actions FAA has taken to evaluate and investigate the efforts by Boeing to downplay MCAS, particularly to U.S. and foreign regulators,” wrote the Members in today’s letter. “We are interested in any actions by the FAA to hold individuals accountable for their actions.”

Although the letter focuses on two specific and highly questionable past actions Boeing took in regards to the 737 MAX, the Members emphasized that they were concerned that FAA ensure it is keeping a close eye on Boeing’s actions in regards to ongoing issues in other programs and noted that the bipartisan Aircraft Certification, Safety, and Accountability Act (ACSAA), which is currently being implemented, will help strengthen the FAA’s ability “to perform effective safety regulation and oversight.”

The Members wrote, “With continuing issues with the Boeing 737 MAX and the 787, and the ongoing certification of the Boeing 777X, it is more critical than ever that the FAA takes its role as regulator seriously. FAA must fully investigate actions by Boeing or others that jeopardize the public’s safety or disregard FAA’s regulations and hold responsible parties accountable. Our hope is that with continued implementation of the ACSAA, issues like those discussed above do not arise in the future.”

            A response from FAA was requested by December 13, 2021.

           

The full letter can be found below and here.

 

November 29, 2021

 

The Honorable Stephen M. Dickson

Administrator

Federal Aviation Administration

800 Independence Avenue S.W.

Washington, D.C. 20591

 

Dear Administrator Dickson:

Thank you for testifying before the House Committee on Transportation and Infrastructure’s Subcommittee on Aviation last month. I appreciate the FAA’s ongoing work to implement the Aircraft Certification, Safety, and Accountability Act (ACSAA) to hold Boeing and other aviation manufacturers accountable and to ensure the agency has the expertise and processes in place to perform effective safety regulation and oversight. However, during the hearing, two issues arose regarding your recollection of Boeing’s past actions in which we would like to receive a more complete account from FAA.

Angle of Attack Disagree Alert

The first issue, as raised by Rep. Sharice Davids, concerns Boeing’s actions regarding the Angle of Attack (AOA) Disagree alert. As documented in our September 2020 investigative report, in August 2017 when Boeing first discovered that this alert was inoperable on more than 80 percent of 737 MAX aircraft, Boeing decided to wait nearly three years to fix the problem so it could execute the fix as a part of its then-planned rollout of the 737 MAX-10 in 2020.[1] Boeing also did not notify the FAA, its MAX customers, or MAX pilots that the alert was not working and continued to manufacture hundreds of more 737 MAX aircraft with the same non-functioning alert.[2] Boeing failed to divulge the fact that the alert was not functioning until October 2018, only after the fatal Lion Air crash.[3]

Boeing defended its actions by saying this was not a safety issue, and they highlighted the fact that a Boeing Authorized Representative, an individual authorized to perform work on behalf of the FAA, concurred with Boeing’s decision to delay the fix.[4] However, the nonfunctioning AOA Disagree alert appears to have violated the 737 MAX type design. As then-Acting Administrator Dan Elwell said in a letter to our committee in July 2019:

Once certified by the FAA, all features included on the airplane become part of the certified type design or approved type design. These features are mandatory in each airplane produced to that type design thereafter, whether or not they are required for safety . . .  Although an AOA disagree message was not necessary to meet FAA safety regulations, once it was made part of the approved type design, it was required to be installed and functional on all 737 MAX airplanes Boeing produced.[5] [Emphasis added.]

            Our committee highlighted this issue, and Boeing’s action, in our investigative report on the 737 MAX not because we believed it was a safety issue, but because it was clearly a glaring issue of lax accountability and oversight. Yet, 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, knowingly continuing to manufacture the aircraft regardless of this known defect and failing to inform your agency—or 737 MAX customers—of this nonfunctioning component on the aircraft until after the Lion Air crash.

Boeing has claimed its senior leadership was unaware of these issues at the time. However, our report showed that multiple individuals across the company were aware of this issue. If Boeing’s senior management was unaware of these issues impacting more than 80 percent of the 737 MAX fleet that rolled off its assembly line, then that should have raised serious questions within the company about its ability to manage the production of its commercial aircraft fleet effectively and safely.

            Boeing’s actions showed an utter disregard for the FAA’s regulatory process. I acknowledge that in your testimony you mentioned that you are taking steps to implement and improve your oversight of Boeing. However, my direct questions are:

      What specifically has the FAA done to hold Boeing accountable for deceiving its customers and violating the FAA’s regulations by knowingly producing 737 MAX aircraft with nonfunctioning AOA Disagree alerts that resulted in the production of nonconforming aircraft prior to the Lion Air crash.

Please be specific in your response and provide all records that indicate any actions the FAA took against Boeing regarding the issues outlined above. As part of your response, please also inform the committee of whether the Boeing Authorized Representative who concurred with Boeing’s decision to delay fixing the AOA Disagree alert for three years is still authorized to conduct work on behalf of the FAA.

Boeing Efforts to Downplay MCAS

The second issue raised at the October 21, 2021, hearing, by Rep. Greg Stanton, concerns the degree of FAA’s awareness about efforts within Boeing to downplay MCAS.

As you know, in January 2021, the U.S. Department of Justice (DOJ) entered into a deferred prosecution agreement with Boeing in which Boeing admitted that, “through two of its 737 MAX Flight Technical Pilots,” Boeing deceived the FAA AEG about MCAS,[6] and more recently DOJ announced an indictment against former Boeing Chief Technical Pilot Mark Forkner for deceiving the FAA about MCAS.[7] The DOJ determined that an independent compliance monitor was unnecessary for its deferred prosecution agreement for several reasons, including their conclusion that, “the misconduct was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior management…”[8]

At the hearing last month, Rep. Stanton referenced a Boeing internal document from 2013 uncovered as part of our committee’s investigation, a copy of which is enclosed for your convenience. This document, which summarizes the minutes of an internal Boeing meeting, details an explicit plan by multiple Boeing employees to downplay MCAS externally, including to regulators. The rationale for doing so was laid out explicitly in the document, which said, “[i]f we emphasize MCAS is a new function, there may be a greater certification and training impact.”[9]  This set a plan in motion to limit the use of the MCAS nomenclature externally and to downplay the system as “new,” by describing it as “an addition to Speed Trim.” A Boeing Authorized Representative signed off on the plan.

            The document shows that multiple individuals were involved in this plan and does not identify any of them as technical pilots, which was the job description of those identified in recent DOJ filings. In addition, we know from our committee’s investigation that the Chief Project Engineer on the 737 MAX acknowledged that achieving “Level B” (non-flight simulator) training requirements for pilots or less was a “design objective” of the 737 MAX program.[10] This was a directive designed and enforced by Boeing’s senior most management and, as our report showed, it had ripple effects throughout the MAX program. This “design objective” combined with the 2013 meeting minutes help to highlight the fact that there were multiple efforts at Boeing from the top of the company on down that emphasized both the critical importance of avoiding flight simulator training as an FAA requirement and the fact that full and clear knowledge of MCAS by external parties, including regulators, could jeopardize that corporate goal.

            After describing the 2013 document, Rep. Stanton asked if you were aware of anyone at Boeing, other than the two technical pilots referenced in DOJ’s deferred prosecution agreement, who tried to downplay the significance of MCAS to regulators. You responded, “I am not aware of any particular individuals.” When Rep. Stanton followed up to ask you whether you believe there were more than two Boeing employees who tried to downplay the significance of MCAS, you said, “I believe that MCAS should have been included in the materials and that it was a safety critical system. Whether there was any intentionality on the part of others I can’t speak to.”[11] I believe the attached document makes it abundantly clear that there was an intentional plan to downplay the significance of MCAS to regulators by multiple individuals at Boeing.

            As you recall, the issue was not just whether FAA was aware of MCAS, but how MCAS was presented to the FAA. According to the Joint Authorities Technical Review (JATR), which was convened by your agency to review the 737 MAX crashes:

The FAA was not completely unaware of MCAS; however, because the information and discussions about MCAS were so fragmented and were delivered to disconnected groups within the process, it was difficult to recognize the impacts and implications of this system. If the FAA technical staff had been fully aware of the details of the MCAS function, the JATR team believes the agency likely would have required an issue paper for using the stabilizer in a way that it had not previously been used. MCAS used the stabilizer to change the column force feel, not trim the aircraft. This is a case of using the control surface in a new way that the regulations never accounted for and should have required an issue paper for further analysis by the FAA. If an issue paper had been required, the JATR team believes it likely would have identified the potential for the stabilizer to overpower the elevator.[12]

            While I appreciate FAA’s current efforts to implement the ACSAA and the recommendations of the JATR, which will help to enhance FAA’s oversight of Boeing and will improve the accountability of Boeing employees or others who endanger the safety of the flying public in the future, I am deeply troubled by the absence of rigorous accountability for Boeing’s past transgressions related to the 737 MAX and the FAA’s failure to hold those who violated the public’s trust accountable. We must continue to move forward on improving the safety of our nation’s aviation certification process, while at the same time not losing sight of past missteps or misdeeds.

            I would like to know what, if any, actions FAA has taken to evaluate and investigate the efforts by Boeing to downplay MCAS, particularly to U.S. and foreign regulators. I am not asking you to rehash the efforts the FAA has taken to establish JATR or other bodies to review the certification process or the MAX accidents, or what Boeing ultimately disclosed to FAA about MCAS. I am interested in any actions by the FAA to hold individuals accountable for their actions.

  • Has the FAA identified the Authorized Representative who concurred with the plan to downplay MCAS?
    • If so, has the FAA interviewed this individual and/or requested related documents?
    • Is this Authorized Representative still authorized to conduct work as a Boeing ODA Unit Member on behalf of the FAA?
    • Please provide the committee with copies of all records related to the FAA’s efforts, if any, regarding the above questions.
  • Did the FAA ever investigate the circumstances or individuals involved in Boeing’s 2013 plan to downplay MCAS?
    • Please provide the committee with copies of all records related to the FAA’s efforts, if any, regarding the above question.
    • What, if anything, has FAA done to hold any of the individuals at Boeing accountable who took part in Boeing’s 2013 efforts to downplay MCAS?
    • Please provide the committee with copies of all records related to the FAA’s efforts, if any, regarding the above question.
  • Does FAA regard the actions memorialized in the enclosed Boeing document as acceptable?

Thank you for your time in addressing these important matters. Please provide a response to this letter by Monday, December 13, 2021. I look forward to continuing to work with the FAA to implement the ACSAA to improve safety, oversight, and accountability. Due to continuing issues with the Boeing 737 MAX and the 787, and the ongoing certification of the Boeing 777X, it is more critical than ever that the FAA takes its role as regulator seriously. FAA must fully investigate actions by Boeing or others that jeopardize the public’s safety or disregard FAA’s regulations and hold responsible parties accountable. My hope is that with continued implementation of the ACSAA, issues like those discussed above do not arise in the future.

                                                      Sincerely,

 

PETER A. DeFAZIO                                                 

Chair                                                                          

Subcommittee on Aviation

 

RICK LARSEN

Chair 

 

GREG STANTON

Member of Congress

 

 

 

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[1] House Transportation & Infrastructure Committee, Final Committee Report on the Design, Development & Certification of the Boeing 737 MAX, September 16, 2020, pp. 122 – 137, accessed here:  https://transportation.house.gov/imo/media/doc/2020.09.15%20FINAL%20737%20MAX%20Report%20for%20Public%20Release.pdf 

[2] Id. See also testimony of Dennis Muilenburg and John Hamilton at hearing titled, “The Boeing 737 MAX: Examining the Design Development, and Marketing of the Aircraft,” House Committee on Transportation and
Infrastructure, U.S. House of Representatives, 116th Congress, First Session, October 30, 2019, pp. 108-109, accessed here: https://www.govinfo.gov/content/pkg/CHRG-116hhrg38282/pdf/CHRG-116hhrg38282.pdf

[3] Id.

[4] Id.

[5] Letter from then-Acting FAA Administrator Dan Elwell to Chair DeFazio, July 11, 2019

[9] See enclosed document, which can also be found on p. 96 of House Transportation & Infrastructure Committee, Final Committee Report on the Design, Development & Certification of the Boeing 737 MAX, September 16, 2020, accessed here: https://transportation.house.gov/imo/media/doc/2020.09.15%20FINAL%20737%20MAX%20Report%20for%20Public%20Release.pdf

[12] Joint Authorities Technical Review, pp. 13-14, accessed here: https://www.faa.gov/sites/faa.gov/files/2021-08/Final_JATR_Submittal_to_FAA_Oct_2019.pdf