February 15, 2022

T&I Chairs Request DOT OIG Review of FAA’s Oversight of Boeing’s Apparent 737 MAX Misconduct

DeFazio and Larsen’s call for OIG investigation comes after the FAA failed to adequately respond to concerns raised in November 2021 letter

 

Washington, DC – Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-OR) and Chair of the Subcommittee on Aviation Rick Larsen (D-WA) requested the U.S. Department of Transportation’s Office of Inspector General (DOT OIG) to review the Federal Aviation Administration’s (FAA) refusal to exercise proper oversight over Boeing’s apparent misconduct regarding Boeing’s 737 MAX.

In 2018 and 2019, the crashes of two 737 MAX aircraft resulted in the deaths of 346 people.

The Chairs’ request came after FAA failed to provide an adequate response to their November 2021 letter with Congressman Greg Stanton (D-AZ) seeking answers from the agency on the apparent lack of Boeing accountability for longstanding issues with the 737 MAX.  

“As described in our November 29, 2021, letter, when Boeing first discovered that the [angle of attack] AOA Disagree alert was inoperable on more than 80 percent of 737 MAX aircraft, Boeing continued to produce 737 MAX planes with the inoperable alert, in violation of its approved type design, and concealed the nonconformity from FAA, airline customers, and MAX pilots for more than a year,” the Chairs wrote to DOT Inspector General Eric J. Soskin.

The first issue that DeFazio and Larsen want the DOT OIG to look into is the angle of attack (AOA) disagree alert, and FAA’s failure to hold Boeing accountable for not disclosing the AOA issues until after a fatal crash.

“This response is problematic for two reasons. First, Administrator Dickson did not address the fact that Boeing did NOT communicate the issue to customers despite having knowledge of it for more than a year, and then only did so after the first deadly 737 MAX crash. Second, the blatant lack of enforcement actions against such non-compliance in this case could encourage manufacturers to ignore their approved type design in the future. Fortunately, the Aircraft Certification, Safety, and Accountability Act provides FAA with additional enforcement mechanisms for nonconformities with type design,” DeFazio and Larsen wrote.

The second issue addressed in the letter is the Boeing effort to downplay MCAS.

“During our committee’s investigation, we uncovered an alarming internal Boeing record, documenting a 2013 meeting in which individuals appear to have hatched an explicit plan to avoid using the term ‘MCAS’ with anyone outside of Boeing because, ‘If we emphasize MCAS is a new function there may be greater certification and training impact,’” DeFazio and Larsen wrote.  Their letter noted that the Boeing document suggested a plan to downplay the significance of MCAS to at least one regulator and that an Authorized Representative, a Boeing employee authorized to conduct work on behalf of the FAA, was involved in the plan.  A copy of the document, which has been previously released, can be found here.

“In response to the November 29, 2021, letter which asked for more specific information about FAA’s investigation and/or civil enforcement efforts regarding the plan to downplay MCAS, Administrator Dickson responded, ‘FAA actions focused on the safety of the product and the acceptability of the system for return to service. Due to the U.S. Department of Justice investigation as well as the work of the Joint Authorities Technical Review and Special Committee, the FAA did not pursue investigations or actions [emphasis added] against the individuals within the Boeing Company,’” DeFazio and Larsen wrote.

The Chairs requested the DOT OIG examine three matters: review and reevaluate FAA’s actions as it relates oversight of AOA disagree sensors and MCAS; assess whether FAA’s actions followed applicable statues, policies, and procedures; and identify any legal or regulatory hurdles that precluded FAA from pursuing civil enforcement related to either matter.

The full letter can be found below and here.

 

February 11, 2022

 

The Honorable Eric J. Soskin

Inspector General

U.S. Department of Transportation

1200 New Jersey Ave SE, 7th Floor
Washington, D.C. 20590

Dear Inspector General Soskin:

We write with concern about the Federal Aviation Administration’s (FAA) reluctance to consider civil enforcement actions against Boeing and/or responsible individuals regarding FAA’s oversight of the 737 MAX. Specifically, on November 29, 2021, we wrote, along with Representative Greg Stanton, to FAA Administrator Steve Dickson, requesting details about FAA’s work on two issues in particular, to which we received a disappointing response on January 24, 2022. Copies of both letters are enclosed for your convenience. 

Regarding the issues themselves, we are concerned FAA did not substantively respond to (1) Boeing’s knowing production of 737 MAX airplanes that did not conform to its approved type design while concealing the nonconformity for more than a year, and (2) evidence of a plan within Boeing, uncovered by our committee’s investigation, to downplay the significance of the Maneuvering Characteristics Augmentation System (MCAS) to anyone outside of Boeing—a plan which involved several individuals, including at least one Authorized Representative (AR), who is a Boeing employee authorized to conduct work on behalf of the FAA. As you may recall, MCAS was one of the primary systems that led to two 737 MAX crashes, killing a combined 346 people.

We respectfully request that you review FAA’s refusal to exercise proper oversight over Boeing’s apparent misconduct, as detailed below.

Angle of Attack (AOA) Disagree Alert

As described in our November 29, 2021, letter, when Boeing first discovered that the AOA Disagree alert was inoperable on more than 80 percent of 737 MAX aircraft, Boeing continued to produce 737 MAX planes with the inoperable alert, in violation of its approved type design, and concealed the nonconformity from FAA, airline customers, and MAX pilots for more than a year.[1] Boeing did not ultimately divulge the problem until after a fatal Lion Air 737 MAX crash, when the AOA sensors came under heavy public scrutiny.[2]

In a July 11, 2019, letter, then-Acting FAA Administrator Dan Elwell explained that although the AOA Disagree alert was not necessary to meet FAA 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.” A copy of this letter is also enclosed for your convenience.

In response to our November 29, 2021, letter, Administrator Dickson stated, “When Boeing identified that 737 MAX airplanes were delivered with nonconformities, they followed their approved quality system process . . . Boeing communicated the issue to the customers who had opted for the AOA disagree option installed on their airplanes. The FAA took no action against the Organization Designation Authorization unit members since they followed their approved process.”[3]

This response is problematic for two reasons. First, Administrator Dickson did not address the fact that Boeing did NOT communicate the issue to customers despite having knowledge of it for more than a year, and then only did so after the first deadly 737 MAX crash. Second, the blatant lack of enforcement actions against such non-compliance in this case could encourage manufacturers to ignore their approved type design in the future. Fortunately, the Aircraft Certification, Safety, and Accountability Act provides FAA with additional enforcement mechanisms for nonconformities with type design.

Boeing Efforts to Downplay MCAS

During our committee’s investigation, we uncovered an alarming internal Boeing record, documenting a 2013 meeting in which individuals appear to have hatched an explicit plan to avoid using the term “MCAS” with anyone outside of Boeing because, “If we emphasize MCAS is a new function there may be greater certification and training impact.”[4] The plan called for referencing MCAS to outsiders as merely an addition to the already existing Speed Trim system. Based on the document, the plan involved several individuals, including an AR.

The document even suggests the plan was to be executed in an upcoming technical familiarity presentation to the European Union Aviation Safety Agency (EASA)—“Make sure EASA Fam Tech presentation is consistent with intent that MCAS is an addition to Speed Trim.”[5]

In response to the November 29, 2021, letter which asked for more specific information about FAA’s investigation and/or civil enforcement efforts regarding the plan to downplay MCAS, Administrator Dickson responded, “FAA actions focused on the safety of the product and the acceptability of the system for return to service. Due to the U.S. Department of Justice investigation as well as the work of the Joint Authorities Technical Review and Special Committee, the FAA did not pursue investigations or actions [emphasis added] against the individuals within the Boeing Company.”[6]

Administrator Dickson’s invocation of the Joint Authorities Technical Review (JATR) and Special Committee as an excuse for FAA declining to investigate the 2013 document is baffling.  JATR completed its work in October 2019, before the 2013 meeting minutes came to light.  Moreover, we specifically addressed JATR’s findings in our November 29, 2021, letter and JATR did not address the 2013 document or FAA’s failure to investigate or hold anyone accountable for what it appears to show. Regarding the Special Committee, that body looked at FAA’s aircraft certification process and did not address the 2013 meeting minutes. We fail to comprehend how the existence of either of these two reports would prohibit FAA from investigating the 2013 meeting minutes, much less taking appropriate civil enforcement action, if warranted.

Administrator Dickson’s invocation of the Department of Justice’s (DOJ’s) investigation is also confusing. FAA has an independent duty to conduct investigations and civil enforcement, when warranted. While obviously FAA should avoid taking action that could impair DOJ’s work, we do not believe FAA is permanently preempted from taking action on any issue in which DOJ also takes an interest.

Taking into account the above, we request that your office:

  1. Review and evaluate FAA’s actions, or lack thereof, described in the matters outlined above;
  2. Assess whether FAA’s actions, or lack thereof, followed applicable statutes, regulations, policies, and procedures; and
  3. Identify any legal or regulatory hurdles which precluded FAA from investigating and/or pursuing civil enforcement relating to either of those matters.

We are confident that the results of this review will be of great interest to this committee as it continues to oversee FAA and prepares for FAA reauthorization legislation next year. 

Sincerely,                         

PETER A. DeFAZIO
Chair

RICK LARSEN
Chair
Subcommittee on Aviation

                                                                    

Encl.

 

cc: The Honorable Sam Graves, Ranking Member

      Committee on Transportation & Infrastructure

 

      The Honorable Garret Graves, Ranking Member

      Subcommittee on Aviation

 

  

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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] Letter from FAA Administrator Dickson to Chair DeFazio, Chair Larsen and Rep. Stanton, January 24, 2022, enclosed.

[4] See attachment to November 29, 2021, letter from Chair DeFazio, Chair Larsen, and Rep. Stanton, enclosed. The document 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

[5] Id.

[6] Letter from FAA Administrator Dickson to Chair DeFazio, Chair Larsen and Rep. Stanton, January 24, 2022, enclosed.