FAA misled Congress on Boeing 737 Max, probe finds

WASHINGTON — Investigators examining a whistle-blower complaint have concluded that safety inspectors who worked on training requirements for Boeing 737 Max pilots were themselves “underqualified” — and that the Federal Aviation Administration provided misleading information about the issue to Congress.

The findings of the U.S. Office of Special Counsel, which independently investigates whistle-blower complaints, have added to questions about the effectiveness and transparency of safety oversight at the FAA, which has come under scrutiny after two new 737 Max jets it had certified as safe crashed in Indonesia and Ethiopia, killing 346 people.

Boeing and the FAA have faced intense criticism for failing to make sure pilots had the information and training necessary to handle any problems with a new automated safety feature on the Max, known as the Maneuvering Characteristics Augmentation System, or MCAS. Investigators say the feature, fed by faulty data from a sensor, repeatedly misfired, forcing the nose of both planes down before they crashed.

In a letter to President Donald Trump on Monday, Special Counsel Henry Kerner wrote that "FAA's official responses to Congress appear to have been misleading in their portrayal of FAA employee training and competency."

Information provided by the FAA "obfuscates" concerns about the preparation of safety inspectors and "diverts attention away from the likely truth of the matter: that they were neither qualified under agency policy to certify pilots flying the 737 Max nor to assess pilot training on procedures and maneuvers."

"The FAA is entrusted with the critically important role of ensuring aircraft safety," Kerner added in a statement. "The FAA's failure to ensure safety inspector competency for these aircraft puts the flying public at risk."

In a statement, the FAA said: "We are reviewing the Special Counsel's letter. We remain confident in our representations to Congress and in the work of our aviation safety professionals. Aviation safety is always our foremost priority, and we look forward to responding to the concerns that have been raised."

On April 2, Sen. Roger Wicker, R-Miss., chairman of the Senate Committee on Commerce, Science and Transportation, queried the acting FAA administrator about claims from whistleblowers "that numerous FAA employees, including those involved in the Aircraft Evaluation Group (AEG) for the Boeing 737 Max, had not received proper training and valid certifications."

Wicker also wrote that some of those employees may have been part of an FAA group, known as a Flight Standardization Board, formed to “develop minimum training recommendations” — specifically for the new Max jets — and ensure that pilots have all the necessary information to safely fly them.

Wicker wrote that the FAA "may have been notified about these deficiencies as early as August 2018" and that the committee "is led to believe that an FAA investigation into these allegations may have been completed recently."

There had indeed been such an investigation by the FAA’s Office of Audit and Evaluation, which considers whistle-blower cases and other internal and external reports of aviation safety violations. That office is meant to provide an “independent venue for the conduct or oversight of objective, impartial investigations and evaluations,” according to the FAA, and it reports to the FAA’s top official.

On April 4, then-acting FAA administrator Daniel Elwell responded to Wicker, saying, "we can confirm that all of the flight inspectors who participated in the Boeing 737 Max Flight Standardization Board certification activities were fully qualified for these activities."

On May 2, Elwell added that “It is not accurate ... to suggest that this whistle-blower disclosure and investigation implicated the qualifications of the Boeing 737 Max Flight Standardization Board (FSB) and the FSB’s evaluation of the Maneuvering Characteristics Augmentation System.”

In a letter dated June 3, the Trump administration’s top lawyer at the Transportation Department, Steven Bradbury, wrote to Kerner saying that the “FAA has confirmed” that qualifications of Max inspectors were not an issue. Bradbury said the whistle-blower’s “allegations have already been investigated.”

But Kerner, whom Trump appointed in 2017, said his investigators "obtained internal FAA communications and conducted employee interviews, which adduced credible information directly contradicting the [FAA's] assertions" to the Senate Commerce Committee.

The information “specifically concerns the 737 Max and casts serious doubt on the FAA’s public statements regarding the competency of agency inspectors who approved pilot qualifications for this aircraft,” wrote Kerner, who served on the House Oversight Committee under Republican chairmen Darrell Issa of California and Jason Chaffetz of Utah, and also worked on investigations for the late senator John McCain, (R-Ariz.)

Kerner wrote that emails reviewed by his office "show serious concerns" within the Office of Audit and Evaluation "regarding the veracity of the agency's public statements, particularly after the FAA's final response was transmitted to the Committee."

The FAA's Office of Audit and Evaluation "determined" that safety inspectors for the Max "had not met qualification standards. Specifically, these [inspectors] had not received formal classroom training as required by" two FAA orders, Kerner wrote. Another FAA division agreed with that interpretation, but "this information does not appear in the final" Office of Audit and Evaluation report on inspector training issues, according to Kerner.

An attorney with the Office of Special Counsel said the office "will not speculate as to why this information does not appear."

A point of disagreement has been whether FAA orders require aviation safety inspectors to have both formal classroom training as well as on-the-job training to do their jobs. Elwell, for example, had argued that were “ambiguities in the FAA’s policy” regarding training requirements for safety inspectors and said the whistle-blower’s concerns “provided the FAA with an opportunity to improve our internal systems and procedures.”

An April memo prepared for Elwell by Ali Bahrami, the FAA's top safety official, argued that while FAA officials at a key division "believe formal training should be required, the current guidance language allows either formal training" or on-the-job training.

The Office of Audit and Evaluation reported in February that it had reviewed training records for all aviation safety inspectors assigned to an office in Seattle, where the Boeing 737 Max was evaluated, and in Long Beach, where questions about inspector training were first raised by the whistle-blower concerning a separate Gulfstream aircraft.

The FAA auditors "found 16 of 22 (73%) have not completed the required formal training course. Worse yet, at least 11 of the 16 do not qualify to enroll in the course because they do not hold a Certified Flight Instructor certificate," they wrote.

Among those were the three members of the Flight Standardization Board for the Boeing 737 Max, according to the Office of Special Counsel.

As the investigation into the Max crashes continues, the FAA met Monday in Montreal with dozens of international aviation regulators. Although U.S. officials had hoped for broad global agreement on when to allow the plane to fly again, FAA Administrator Stephen Dickson seemed to acknowledge that will come in phases, saying the agency is primed to help "as you make your own decisions about returning the Max to service."

Noting that “accidents in complex systems rarely are the result of a single cause,” Dickson also said international regulators will need to target “improvements in standards and approaches for not just ... how aircraft are designed and produced, but how they are maintained and operated.”