Committee Investigation Report - Aviation Safety Report
Committee Investigation Report - Aviation Safety Report
Committee Investigation Report - Aviation Safety Report
I. Executive Summary……………………………………………………….…….....…….2
II. Overview……………….......……………………………………………………………..3
IV. Findings……..…………………………………………………………………………...11
V. Introduction………………………………………………………………………...…...14
C. Whistleblowers……………………………………………………………………..…20
C. Other Investigations………………………………………………………………..…32
C. Atlas Airlines………………………………………………………………………….59
VIII. Conclusion……………………………………………………………………………....99
IX. Recommendations…………………………………………………..……….………...101
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I. Executive Summary
In April of 2019, weeks after the second of two tragic crashes of Boeing 737 MAX aircraft, U.S.
Senate Committee on Commerce, Science, and Transportation staff began receiving information from
whistleblowers detailing numerous concerns related to aviation safety. Commerce Committee Chairman
Roger Wicker directed staff to begin an oversight investigation. The scope and breadth of the
investigation quickly expanded beyond the first allegations inspired by the 737 MAX tragedies.
Information received from fifty-seven whistleblowers revealed common themes among the allegations
including insufficient training, improper certification, FAA management acting favorably toward
operators, and management undermining of frontline inspectors. The investigation revealed that these
trends were often accompanied by retaliation against those who report safety violations and a lack of
effective oversight, resulting in a failed FAA safety management culture.
In support of the committee’s investigation, Chairman Wicker sent seven letters, which included
thirty specific requests for information to the FAA. To date more than half of the requested information
remains unanswered or incomplete. Committee staff have reviewed approximately 13,000 pages of
documents over the course of the investigation. Some of the correspondence in response to the
Chairman’s letters appeared to be contradictory and misleading. As a result of the slow response to
document requests, Chairman Wicker requested twenty-one FAA employees be made available for
interview by committee staff. Over the twenty month investigation, committee staff were permitted to
interview less than half of the employees requested. The documents received and the FAA employee
interviews conducted produced inconsistencies, contradictions, and in one case possible lack of candor.
This report details a number of significant lapses in aviation safety oversight and failed leadership
in the FAA. The committee is in receipt of many more examples and continues to receive new
information from new whistleblowers regularly. Some of the most significant findings include:
FAA senior managers have not been held accountable for failure to develop and deliver adequate
training in Flight Standards despite repeated findings of deficiencies over several decades.
The FAA continues to retaliate against whistleblowers instead of welcoming their disclosures in the
interest of safety.
The Department of Transportation Office of General Counsel (DOT OGC) failed to produce relevant
documents requested by Chairman Wicker as required by the U.S. Constitution Article 1, Section 1.
The FAA repeatedly permitted Southwest Airlines to continue operating dozens of aircraft in an
unknown airworthiness condition for several years. These flights put millions of passengers at
potential risk.
During 737 MAX recertification testing, Boeing inappropriately influenced FAA human factor
simulator testing of pilot reaction times involving a Maneuvering Characteristics Augmentation
System (MCAS) failure.
FAA senior leaders may have obstructed a Department of Transportation Office of Inspector General
(DOT OIG) review of the 737 MAX crashes.
2
II. Overview
In April of 2019, weeks after the second of two tragic crashes of Boeing 737 MAX
aircraft, Committee staff began receiving information from whistleblowers bringing numerous
concerns and disclosures related to aviation safety. The initial disclosures were related to
improper training and certification of pilots in new types of aircraft. Chairman Wicker directed
staff to begin an investigation.
Over the next twenty months, Committee staff collected and investigated information
from fifty-seven whistleblowers. The whistleblowers were from diverse backgrounds and
experiences, including government, academia, industry, and the private sector. The
overwhelming majority of the whistleblowers proved to be passionate, credible, and articulate in
relaying their concerns. A significant number of the whistleblowers worked in the Federal
Aviation Administration (FAA), and some had made well-known protected disclosures in the
past and even testified before Congress.
Correspondence
In support of the Committee’s investigation, Chairman Wicker sent seven letters to the
FAA, including document and interview requests in order to gather factual information related to
whistleblower claims. In total, Chairman Wicker issued over thirty specific requests, more than
half of which have not been answered. Committee staff reviewed approximately 13,000 pages of
documents from the FAA. However, some of the correspondence in response to the Chairman’s
letters at times appeared to be contradictory and misleading. In a September 23, 2019, letter to
President Trump, U.S. Special Counsel Henry J. Kerner indicated that, “FAA’s official responses
to Congress appear to have been misleading in their portrayal of FAA employee training and
competency.”
Because of the slow response to document requests, Chairman Wicker sent a letter in
December of 2019 to FAA Administrator Steve Dickson requesting that twenty-one FAA
employees be made available for interview by Committee staff. Over the twenty month
investigation, Committee staff were permitted to interview nine employees. Three of the
requested employees departed from the FAA after the request for interviews was made but were
not made available before their departure.
The documents received and the FAA employee interviews conducted produced
inconsistencies, contradictions, and in one case possible lack of candor. However, the totality of
the reviewed evidence corroborated and firmly supports the vast majority of whistleblower
allegations.
3
Investigation
Over the course of the Committee’s investigation, its scope and breadth expanded
significantly. Common themes among the allegations were insufficient training, improper
certification, FAA management acting favorably toward operators, and management
undermining of frontline inspectors. The investigation concluded that these trends were often
accompanied by retaliation against those who report safety violations and a lack of effective
oversight, resulting in a failed FAA safety management culture.
Training
Whistleblower disclosures and related documents confirmed that insufficient training for
Aviation Safety Inspectors (ASI) has been a concern in the FAA for decades. This report details
numerous Inspector General, NTSB, and other reports supporting this fact. Despite FAA
acceptance of some recommendations from previous audits and investigations, the concern
persists. Training content and quality have diminished over time. In several examples reviewed
by the Committee, this lack of training has resulted in improperly certified check airmen, who in
turn appear to have issued improper aircraft type ratings to numerous pilots. Many of these
ASI’s participate on the Flight Standardization Board (FSB) which conduct evaluations and
testing, and which contribute to the certification of new aircraft. The Committee’s investigation
determined some insufficiently trained ASI’s participated in the FSB that evaluated the Boeing
737 MAX.
Southwest Airlines
4
ground the remaining uninspected aircraft until the inspections could be completed.1
Administrator Dickson refused to ground the aircraft as recommended and gave Southwest
several more months to finish the inspections that should have been completed before the aircraft
ever flew in U.S. airspace.
Oversight
Oversight failures were not limited to commercial passenger airlines. The Committee
investigated circumstances surrounding several cargo, charter, and private aviation fatal
accidents. Many of these tragedies occurred in Hawai’i. Several deficiencies discovered in FAA
commercial airline oversight were also present in this environment. In multiple cases reviewed
by Committee investigators, FAA inspectors found non-compliant safety issues and attempted to
hold operators accountable. FAA managers often refused to support compliance or enforcement
actions, and in some cases they appeared to retaliate against inspectors for doing so. Tragically,
these safety concerns were communicated and documented prior to several fatal crashes. In one
case, an FAA ASI investigated a fatal accident killing all eleven people on board. The ASI
discovered significant maintenance concerns and discrepancies. The ASI included the concerns
in his/her findings and requested the immediate revocation of the license of the mechanic
responsible for the aircraft’s maintenance. The request was sent to FAA legal counsel for
review. Ultimately, the license revocation was not supported and the mechanic was recertified
two days after a second fatal crash that killed two. A subsequent investigation revealed the same
mechanic had performed maintenance on both airplanes, and that he had previously been found
to have submitted false paperwork. An NTSB investigation into the crash is ongoing.
The majority of whistleblowers who contacted the Committee alleged that FAA
management favors operators and does not support frontline inspectors in their performance of
diligent oversight. Several whistleblowers provided extensive evidence of communications
between FAA managers and operators which clearly supported the perception of “coziness.”
The issue of coziness between the regulator and the operator is a much-debated concern. In
several cases investigated by the Committee, managers overruled inspectors on issues that were
clear violations of regulations. When inspectors pushed back, they were investigated and in
some cases reassigned. Some inspectors chose to voluntarily be reassigned or accept promotions
to other positions because they did not want to be responsible for the outcome of the
inappropriate management interference. The Committee investigation concludes the deference
to the operator and undermining of inspectors has been destructive to oversight efforts and
voluntary reporting programs in the FAA.
The Committee also discovered several instances of former FAA senior managers who
left the agency to work in the private sector and directly interact with prior FAA supervisors and
1
Memorandum, Action Required. Southwest Airlines Airworthiness Concerns, October 24, 2019,
https://www.commerce.senate.gov/services/files/489A89CB-6EE1-4906-ABFA-3875F43D6C67
5
subordinates in their new positions. One retired FAA senior manager was implicated in 2008
congressional testimony as having directed an FAA employee and congressional witness to
destroy notes related to the subject of the hearing. This same retired FAA senior manager served
as an executive for the company that provided deficient review of the Southwest Skyline aircraft
described above. Another FAA senior manager retired from the FAA in 2016 and now serves as
the Senior Director of Regulatory Compliance and Director of Maintenance at Southwest
Airlines. A Senior FAA manager with oversight of Southwest Airlines confirmed to the
Committee that he previously worked with the Southwest executive and maintains a personal
relationship.
The Aviation Safety Action Program (ASAP) is a voluntary reporting program often used
by airline pilots. ASAP allows pilots and other employees to report errors without receiving
disciplinary enforcement actions when acceptance criteria are met and the reports are accepted
by a review Committee. The criteria includes the reported error not being related to criminal
activity, substance abuse, controlled substances, alcohol, or intentional falsification. ASAP
reports may also not be accepted in the cases of intentional disregard for safety.2 The Committee
reviewed dozens of cases submitted by whistleblowers that were clearly not admissible to the
ASAP program. Despite their articulation of exclusionary criteria, FAA inspectors including
ASAP managers, were pressured and coerced by FAA managers to accept the events into ASAP.
In some cases reviewed by Committee investigators, it is clear some operators have intentionally
misled the FAA and obscured relevant information valuable to inform the proper corrective
action. Many Inspectors who refused to acquiesce to operator demands and management
pressure were retaliated against, investigated, or reassigned in several cases reviewed by
Committee investigators. Often times, the operator was the source of the complaints prompting
investigation, and in others, they demanded FAA management remove the inspector.
While the tragic 737 MAX crashes prompted several whistleblowers to come forward,
and was the genesis of the investigation, the crashes or certification of the 737 MAX was not the
focus. Yet, the investigation does suggest factors such as insufficient training and coziness could
have contributed to the troubled certification. For example, whistleblowers alleged serious
unethical behavior in pilot testing efforts to recertify the 737 MAX. Whistleblowers detailed
concerns about human factor assumptions related to pilot reaction times to a runaway stabilizer
event and/or faulty Maneuvering Characteristics Augmentation System (MCAS) activation.
According to whistleblowers, these assumptions include a four second reaction time to identify a
runaway stabilizer event which could be indicative of an MCAS activation. One whistleblower
conducted his/her own ad hoc testing in a non-MCAS equipped simulator. The three flight crews
2
ASAP Policy and Guidance, Orders and Advisory Circulars, Volume 11 Flight Standards Programs, Chapter 2
Voluntary Safety Programs, (June 16, 2014) available at:
https://fsims.faa.gov/wdocs/8900.1/v11%20afs%20programs/chapter%2002/11_002_001.pdf
6
presented with this scenario responded with reaction times to identify the problem in seven, nine,
and eleven seconds. The time to complete the corrective action and correct the situation was
forty-nine seconds, fifty-three seconds, and sixty-two seconds. In each instance, the simulator
ended up in a nose pitch down altitude, but the simulated aircraft was able to recover.
The whistleblower emphasized these tests were completed in a 737-NG simulator, and
MCAS was not an available feature or factor in the test scenarios. The whistleblower contends
that the result of these tests indicate Boeing’s assumed reaction time of four seconds is
unrealistic and found actual pilot reaction times were as much as four times the assumed time.
The Committee’s investigation discovered that at least one official FAA recertification
test event was improperly influenced by Boeing. At least one FAA Aircraft Certification Test
Pilot appears to have been complicit in this testing. Slow and incomplete responses to document
requests and incomplete interviews have hindered progress on this specific topic. Some of the
delays are due to conflict with ongoing criminal investigations. Therefore, it is impossible to
determine how much of the systemic training, oversight, and management intervention problems
detailed in this report may have contributed to the certification of the 737 MAX.
The FAA Modernization and Reform Act included a provision for the creation of the
Aviation Safety and Whistleblower Investigation Office as a result of whistleblower complaints,
Department of Transportation’s Office of Inspector General (DOT OIG) audits, and
congressional oversight. Prior to enactment, the FAA had designated the Office of Audit and
Evaluation (AAE) to coordinate audits and investigate aviation safety complaints. After
enactment of the Act, the FAA convinced Congress to allow AAE in its current form to fulfill the
intent of the Act. Note: the AAE does not have the word “whistleblower” or “investigation” in
its title. According to the office’s webpage, “AAE is a staff office that reports directly to
the FAA Administrator and provides an independent venue for the conduct or oversight of
objective, impartial investigations and evaluations.”
The Committee investigation concludes AAE does not necessarily conduct independent,
objective, or impartial investigations and evaluations. Often, AAE refers complaints, including
whistleblower complaints, back to the very line of business against which the complaint is
alleged. This is counterintuitive to any interpretation of objective oversight and is clearly
deficient today. Based on the review and information received from whistleblowers and staff
interviews, AAE often also fails to independently investigate waste, fraud, abuse, or
mismanagement. According to FAA employee interviews and cases reviewed by Committee
investigative staff, these type of complaints are often referred to the FAA Office of Security and
Hazardous Materials (ASH).
The Committee has determined AAE was implemented with insufficient resources, which
remains the case today. Specifically, inadequate staffing requires the referral of whistleblower
safety disclosures to FAA lines of business, defeating the value and congressional intent of an
independent Aviation Safety Whistleblower Investigation Office. As of the time this report was
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being drafted, the Committee had not yet received the 2019 AAE Annual report required, “no
later than October 1 of each year” by the 2012 FAA Modernization and Reform Act.3 While it is
common for such a report to be received thirty to sixty days after its due date, one year late is
inexcusable.
Legislation
3
FAA Modernization and Reform Act of 2012, (Feb. 14, 2012) available at:
https://www.congress.gov/112/plaws/publ95/PLAW-112publ95.pdf
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III. Table of Acronyms
Acronym Description
AAE Office of Audit and Evaluation
AAM Office of Aerospace Medicine
ACO Aircraft Certification Office
AD Airworthiness Directive
AED Aircraft Evaluation Division
AEG Aircraft Evaluation Group
AFB-1 Office of Foundational Business
AFC-1 Office of Air Carrier Safety Assurance
AFG-1 Office of General Aviation Safety Assurance
AFS-1 Office of Safety Standards
AIR Aircraft Certification Service
ALPA Air Line Pilots Association
AOA Angle of Attack
AOV Air Traffic Safety Oversight Service
APD Aircrew Program Designee
AQS FAA Office of Quality, Integration and Executive Services
ARM FAA Office of Rulemaking
ASAP Aviation Safety Action Program
ASH FAA Office of Security and Hazardous Materials
ASI Aviation Safety Inspector
ASRS Aviation Safety Reporting System
ATOS Air Transportation Oversight System
ATS Air Traffic Service
AVP Office of Accident Investigation and Prevention
AVS FAA Office of Aviation Safety
CAMP Continuous Airworthiness Maintenance Program
CEPO Certification Evaluation Program Office
CFR Code of Federal Regulations
CHEP Certificate Holder Evaluation Process
CMO Certificate Management Office
CST United States Senate Committee on Commerce, Science, and Transportation
DAR Designated Agency Representatives
DOT Department of Transportation
EET Extended Envelope Training
EMAS Engineered Material Arresting System
ERC Event Review Committee
ERT Emergency Response Team
FAA Federal Aviation Administration
9
FCOM Flight Crew Operations Manual
FLM Front Line Manager
FOQUA Flight Operational Quality Assurance
FS Flight Standard Service
FSB Flight Standardization Board
FSDO Flight Standards District Office
GAO Government Accountability Office
JATR Joint Authorities Technical Review
LOB Line of Business
MCAS Maneuvering Characteristics Augmentation System
MSAD Monitor Safety/ Analyze Data
MSPB Merit Systems Protection Board
NTSB National Transportation Safety Board
NTSC National Transportation Safety Committee
OAWP Office of Accountability and Whistleblower Protection
ODA Organization Designation Authorization
ODAR Organizational Designated Airworthiness Representative
OIG Office of Inspector General
OGC Office of General Counsel
OJT On-the-Job Training
OSC Office of Special Counsel
PAI Principle Avionics Inspector
PASS Professional Airway System Specialist
PIC Pilot in Command
PMI Principle Maintenance Inspector
POI FAA Principal Operations Inspector
PRD Pilot Record Database
PWB Performance Weight and Balance
ROI Reports of Investigation
SAS Safety Assurance System
SME Subject Matter Expert
SMS Safety Management System
SRA Safety Risk Analysis
SWA Southwest Airlines
USAF United States Air Force
VDRP Voluntary Disclosure Reporting Program
VSRP Voluntary Safety Reporting Program
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IV. Findings
The Aviation Safety and Whistleblower Investigations Office directed as part of the 2012
FAA Modernization and Reform Act was not fully implemented and remains insufficient.
Senior managers in FAA Flight Standards may lack technical knowledge and experience to
effectively lead aviation safety regulatory oversight programs.
An FAA Aviation Safety Inspector (ASI) may have lacked candor when asserting they
completed all FSB ground training prior to receiving a check ride and subsequent type rating
for the Gulfstream VII.
FAA has not consistently communicated its oversight and enforcement role, especially with
regard to voluntary reporting programs.
FAA conduct of investigations appear to be inconsistent, lack objectivity and diligence while
providing opportunity for abuse and retaliation.
During 737 MAX recertification testing, a Boeing employee inappropriately influenced FAA
human factor simulator testing of pilot reaction times involving a Maneuvering
Characteristics Augmentation System (MCAS) failure.
FAA Aircraft Certification Office (ACO) test pilots were complicit in skewing human factor
simulator testing to support erroneous pilot reaction time to runaway stabilizer reaction time
assumptions of Boeing.
The Department of Transportation Office of General Counsel (DOT OGC) failed to produce
relevant documents requested by Chairman Wicker as required by the U.S. Constitution
Article 1 Section 1.4
4
Cornell Law School, Legal Information Institute, “U.S. Constitution, Article 1,”
https://www.law.cornell.edu/constitution/articlei
11
The DOT OGC improperly redacted information in produced documents, hindering the
Committee’s oversight investigation.
FAA senior leaders may have obstructed a Department of Transportation Office of Inspector
General (DOT OIG) review of the 737 MAX crashes.
Operators intentionally file Aviation Safety Action Program (ASAP) reports which do not
meet the requirements of the ASAP program.
FAA management is complicit in accepting ASAP events which are not eligible as defined
by program parameters.
Acceptance of intentional acts and other forbidden ASAP events may obscure safety trends
from analysis while not holding operator employees accountable.
ASAP data was not effectively collected and analyzed by the FAA.
Commercial airlines and other operators appeal to FAA managers to influence the Event
Review Committee (ERC) acceptance decisions, thereby undermining the integrity and value
of the ASAP program.
FAA improperly allowed a Part 135 Helicopter company in Hawai’i to operate under Part 91.
FAA improperly granted check airman authority under Part 135 to the owner/operator of
Novictor Helicopter in violation of 14 CFR Part 119.71.
FAA management is reluctant in many cases to listen to inspectors and support requested
compliance and enforcement actions.
An FAA ASI was issued a new type rating without having completed the required training.
Thousands of type rating check rides may have been conducted by improperly trained and
certified Aviation Safety Inspectors, potentially rendering them invalid.
FAA senior managers have not been held accountable for failure to develop and deliver
adequate training in Flight Standards despite repeated findings of deficiencies over several
decades.
12
The FAA repeatedly permitted Southwest Airlines to continue operating dozens of aircraft in
an unknown airworthiness condition for several years. These flights put millions of
passengers at potential risk.
Southwest Airlines successfully exerts improper influence on the FAA to gain favorable
treatment related to regulatory compliance and voluntary reporting programs.
FAA appears to select managers in the Southwest Airlines Certificate Management Office
(CMO) who lack reasonable experience and do not provide effective regulatory compliance
or enforcement.
FAA managers undermine Aviation Safety Inspectors and in some cases retaliate against
them for conducting diligent oversight and making protected safety disclosures.
The FAA has failed to hold employees accountable for lapses in oversight of Southwest
Airlines.
The FAA has failed to hold employees accountable for lapses in oversight and certification of
the 737 MAX.
13
V. Introduction
The Senate Committee on Commerce, Science, and Transportation’s investigation of
aviation safety oversight began in April 2019 after receiving whistleblower disclosures about
improper training and certification of Federal Aviation Administration (FAA) Aviation Safety
Inspectors (ASI). Over the course of the investigation the Committee received additional
disclosures from over fifty whistleblowers. The Committee made three separate formal requests
for documents from the FAA, and requested twenty-one FAA employee interviews to gain
factual information related to whistleblower allegations. All document requests, responses, and
interview arrangements throughout the investigation have been managed by the Department of
Transportation Office of General Counsel (DOT OGC).
The Committee has been unable to effectively engage directly with the FAA on
document requests or related questions, despite repeated requests and assurances, due to DOT
OGC intervention. The Committee has asked repeatedly for an accounting of document
productions provided to the Committee, including what the production responds to and whether
the response is complete, which DOT OGC staff initially agreed to do. However, after repeated
requests by Committee staff, DOT OGC staff has refused to provide the information, stating it is
not their responsibility to provide detailed accounting for their document productions.
To date, the Committee has received responses to half of the requested items totaling
approximately 13,000 pages. It has been seventeen months since the initial request and nine
months since the most recent request on March 11, 2020.
Of the twenty-one employees requested to be interviewed, only nine have been made
available. Three of them have separated from the agency while the Committee request to
interview them was outstanding. The level of cooperation by the FAA and DOT has been
unacceptable and at times has bordered on obstructive.
This lack of cooperation by DOT and FAA has significantly delayed the progress of the
Committee’s investigation. Nevertheless, the Committee continues to receive an increasing
amount of information from whistleblowers. In fact, new whistleblowers have continued to
come forward as this report was being drafted. Despite the apparent obstruction by DOT and
FAA, the Committee has successfully gathered sufficient evidence to make numerous findings
and recommendations detailed in this report. In some cases, the Committee has requested the
DOT OIG investigate further. The Committee will remain engaged on outstanding issues and
continue to refer additional matters to the DOT OIG and other agencies as appropriate.
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A. The Federal Aviation Administration
Created by the Federal Aviation Act of 1958, the FAA has a broad mandate to oversee
both air and space transportation. Headquartered in Washington, D.C., the FAA’s continued
mission is to provide the safest and most efficient aerospace system in the world.5 The FAA’s
Office of Aviation Safety Division (AVS) is responsible for certification and safety oversight of
approximately 7,300 U.S. commercial airlines and air operators. AVS is also responsible for
civil flight operations, developing regulations, and certification of all operational and
maintenance enterprises in domestic civil aviation. 6
Contained within AVS are eight different offices including the Flight Standards Service
(FS), the Office of Quality, Integration and Executive Services (AQS), the Office of Rulemaking
(ARM), the Air Traffic Safety Oversight Service (AOV), the Office of Aerospace Medicine
(AAM), the Office of Accident Investigation and Prevention (AVP), and the Aircraft
Certification Service (AIR). 7 Together these offices certify new types of aircraft, oversee
training of pilots, and continually ensure the ongoing safety of commercial airline operations.
Certification and oversight of airmen, air operators, air agencies, and designees are carried
out by the FS. FS consists of four offices: the Office of Air Carrier Safety Assurance (AFC-1),
the Office of General Aviation Safety Assurance (AFG-1), the Office of Safety Standards (AFS-
1), and the Office of Foundational Business (AFB-1). AFC-1 is responsible for certification and
oversight activities for aviation entities conducting operations under 14 CFR Part 121, the
regulation that governs the certification process for domestic air carriers.8 The office oversees
twenty-nine Certificate Management Offices (CMO) throughout the country, and each CMO is
dedicated to managing the certification of specific carriers or all carriers under a designated
region. AFG-1 directs seventy-seven Flight Standards District Offices (FSDO) that oversee
certification of all non-14 CFR Part 121 operations. This includes general aviators, foreign air
carriers, and charter operations. Together AFC-1 and AFG-1 form a network of regional offices
that provide local, on-the-ground certification and oversight of the U.S. aerospace industry.
The Organization Designation Authorization (ODA) program works in tandem with flight
standards offices to facilitate certification as well.9 The program allows the FAA to delegate to a
qualified person or organization the authority to conduct examinations, perform tests, and issue
5
U.S. Department of Transportation, Federal Aviation Administration, “Safety: The Foundation of Everything We
Do,” last modified November 6, 2019, https://www.faa.gov/about/safety_efficiency/.
6
U.S. Department of Transportation, Federal Aviation Administration, “Aviation Safety (AVS),” last modified June
15, 2020, https://www.faa.gov/about/office_org/headquarters_offices/avs/.
7
U.S. Department of Transportation, Federal Aviation Administration, “Aviation Safety (AVS)—
Offices,” last modified July 7, 2020, https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/.
8
U.S. Department of Transportation, Federal Aviation Administration, “Office of Air Carrier Safety Assurance,”
last modified September 2, 2020, https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/afx/afc/.
9
Memorandum, “Policy clarification to Order 8100.15, Organization Designation Authorization,” from Susan J. M.
Cabler, Manager, Design, Manufacturing & Airworthiness Division, AIR-100 (Washington, DC: Federal Aviation
Administration, 2017),
https://rgl.faa.gov/Regulatory_and_Guidance_Library/rgPolicy.nsf/0/7cc6a4db052d9c44862581470077f3d9/$FILE/
AIR-100-17-160-PM05.pdf.
15
approvals and certificates on behalf of the FAA. The ODA program is authorized under 49
U.S.C 44702(a).10
The Aircraft Evaluation Group (AEG) is a part of the AIR. For Evaluation and Certification of
large jets and propeller aircrafts, the FAA establishes a Flight Standardization Board (FSB). The
FSB is overseen by the AEG and consists of operations specialists from the AEG, operations
inspectors from the relevant CMO, representatives from the AFS-1, and technical advisors from
other AEG offices as necessary. The FSB has a number of responsibilities, one of which is to
establish pilot type ratings for new aircraft. Pilot type ratings are authorizations to fly specific
aircraft. FSB participants evaluate and recommend training requirements for these type ratings
based on the characteristics of the aircraft in question. The FSB also conducts the initial training
for the manufacturer’s pilots and FAA inspectors, and will publish recommendations for FAA
inspectors’ use in approving an operator’s training program.
Since 1997, the risk of a fatal commercial aviation accident has dropped approximately
94 percent.11 However, major fatal incidents involving commercial aircraft still happen. For
example, in 2009 Colgan Air Flight 3407 crashed killing forty-nine people, and in 2000 Alaska
Airlines Flight 261 crash, resulting in the deaths of eighty-eight people. In 2017, Southwest
Airlines Flight 1380 experienced an in-flight engine failure that led to one fatality.
Two of the most recent and aviation disasters were the Lion Air Flight 610 crash on
October 29, 2018, and the Ethiopian Airlines Flight 302 crash on March 10, 2019, both of which
involved Boeing 737 MAX aircraft. A new feature called the Maneuvering Characteristics
Augmentation System (MCAS) was implicated as a factor in both tragedies. 12 Over the past two
years, the Committee has received numerous whistleblower disclosures regarding these incidents
and the development and certification process behind the Boeing 737 MAX aircraft.
While safety is top priority at the FAA, the 737 MAX crashes have caused numerous
government oversight and investigative bodies to raise a number of concerns regarding specific
FAA policies and programs in support of aviation safety. Of particular interest is management
culture, lapses in oversight, and improper relationships between FAA employees and operators.
10
49 U.S.C. 44702(a),
https://uscode.house.gov/view.xhtml?path=/prelim@title49/subtitle7/partA/subpart3/chapter447&edition=prelim.
11
U.S. Congress, Senate, Committee on Commerce, Science, and Transportation, Subcommittee on Aviation and
Space, The State of Airline Safety: Federal Oversight of Commercial Aviation: Hearing Before the Committee on
Commerce, Science, and Transportation, 116th Cong., 1st sess., March 27, 2019 (testimony of Daniel Elwell, Acting
Administrator, Federal Aviation Administration), webcast at:
https://www.commerce.senate.gov/services/files/1454ADDB-047F-444F-BEDE-DC9413D6D141.
12
David Schaper and Brakkton Booker, “Ethiopian Officials Say Faulty Boeing Software Played Role in Deadly
737 Max Crash,” NPR, March 9, 2020, https://www.npr.org/2020/03/09/813740173/ethiopian-officials-say-faulty-
boeing-software-played-role-in-deadly-737-max-cra.
16
Government Accountability Office
Fundamental concerns about the quality of oversight, many of which are rooted in the
inadequate level of training for key safety oversight positions within the FAA, go back as far as
1989. In that year, the Government Accountability Office (GAO) issued a report titled, FAA
Aviation Safety Inspectors Are Not Receiving Needed Training.13 The report found that for a 6
month period in 1988, only 37 percent of active ASI’s had received the required training. As a
result of the GAO report, the FAA opened and staffed an office to oversee training.
In 2005, another GAO report, using a series of FAA employee surveys, found that
approximately half of FAA’s safety inspectors think that they have the technical knowledge
required to effectively do their jobs.14 As a result of this report, the FAA created two DVD
training courses and a web-based training course. The FAA also instituted additional guidance
for training implementation following a GAO-recommended feasibility study on the subject.
On October 30, 2013, the House Committee on Transportation and Infrastructure’s
Aviation Subcommittee held a hearing titled, “Review of FAA’s Certification Process: Ensuring
an Efficient, Effective, and Safe Process.”15 During this hearing, multiple experts testified to a
lack of effective oversight being exercised by the FAA. Dr. Gerald Dillingham, Director of
Physical Infrastructure Issues at the Government Accountability Office, testified that, “when
faced with the certification of new aircraft or equipment, FAA staff have not been able to keep
pace with industry changes, and thus may struggle to understand the aircraft or equipment they
are tasked with certification.”16 Michael Perrone, President of the Professional Aviation Safety
Specialists, testified that, “the balance of FAA oversight is insufficient.”17
In 2014, GAO released another report addressing the training of FAA inspectors. The
report stated, “Representatives from nine of the twenty stakeholders GAO interviewed cited
concerns that FAA inspectors may not be adequately trained to oversee Safety Management
System (SMS) activities” at US carriers.18 As a result of this report, the FAA instituted increased
SMS training for its inspectors.
13
U.S. Government Accountability Office, FAA Aviation Safety Inspectors Are Not Receiving Needed Training,
GAO/RCED-89-168 (Washington, DC, 1989), https://www.gao.gov/assets/220/211750.pdf.
14
U.S. Government Accountability Office, FAA Management Practices for Technical Training Mostly Effective;
Further Actions Could Enhance Results, GAO-05-728 (Washington, DC, 2005),
https://www.gao.gov/assets/250/247645.pdf.
15
U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, Review of FAA’s
Certification Process: Ensuring an Efficient, Effective, and Safe Process: Hearing before the Subcommittee on
Aviation of the Committee on Transportation and Infrastructure, 113th Cong, 1st sess., October 30, 2013,
https://www.govinfo.gov/content/pkg/CHRG-113hhrg85301/pdf/CHRG-113hhrg85301.pdf.
16
Ibid.
17
Ibid.
18
U.S. Government Accountability Office, Additional Oversight Planning by FAA Could Enhance Safety Risk
Management, GAO-14-516 (Washington, DC, 2014), https://www.gao.gov/assets/670/664402.pdf.
17
Department of Transportation Office of Inspector General
19
U.S. Department of Transportation, Office of Inspector General, Review of FAA’s Safety Oversight of Airlines and
Use of Regulatory Partnership Programs, AV-2008-057 (Washington, DC, 2008),
https://www.oig.dot.gov/sites/default/files/SWA_Report_Issued.pdf.
20
U.S. Congress, Senate, Committee on Appropriations, Subcommittee on Transportation, Housing and Urban
Development, and Related Agencies, An Examination of the Federal Aviation Administration's Safety and
Modernization Performance: Hearing Before a Subcommittee of the Committee on Appropriations, 110th Cong., 2d
sess., April 17, 2008 (prepared statement of Hon. Calvin L. Scovel III, Inspector General, U.S. Department of
Transportation),
https://www.oig.dot.gov/sites/default/files/WEB_FILE_IG_Statement_on_Safety_and_Modernization.pdf.
21
U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on
Aviation, Adequacy of FAA Oversight of Passenger Aircraft Maintenance: Hearing Before the Subcommittee on
Aviation of the Committee on Transportation and Infrastructure, 107th Cong., 1st sess., April 11, 2002 (prepared
statement of Alexis M. Stefani, Assistant Inspector General for Auditing, U.S. Department of Transportation, Office
of Inspector General), https://www.oig.dot.gov/sites/default/files/cc2002146.pdf.
18
experienced inspector, was assigned to office duties following a complaint from the airline. As a
result of this finding, DOT OIG recommended that the FAA establish an independent
organization within the agency to investigate whistleblower disclosures. This recommendation in
part led to the creation of a whistleblower investigation office as part of the FAA Modernization
and Reform Act of 2012.
As a result of its investigation, the DOT OIG issued eight recommendations for the FAA.22
The FAA generally agreed with all but two of the recommendations which would have rotated
supervisory inspectors between carriers to combat coziness and would have established an
independent organization to investigate safety issues identified by FAA employees. The FAA
cited budget constraints for disagreeing with these recommendations. It also stated that it had an
existing office, the Aviation Safety Reporting System (ASRS), which purported to provide an
avenue for employees to resolve safety issues without fear of reprisal, thus negating the need for
an independent organization as outlined in recommendation eight. DOT OIG stated that the
FAA’s position was “unacceptable” and urged the agency to reconsider it in the interest of
safety.23
The 2008 DOT OIG report was not the first to outline concerns about the FAA’s ATOS
system, nor was it the last. Previously, DOT OIG released a report in 2002 with nearly the same
findings, detailing persistent oversight issues related to poor implementation of the Air
Transportation Oversight System (ATOS).24 The FAA agreed to strengthen national oversight
and appointed a new Director of Flight Standards. The DOT IG contended that these actions
were inadequate and did not improve ATOS implementation. Three years later, DOT OIG
released another report with similar findings including that ATOS implementation was lacking
and inconsistent across carriers.25 The report found that 26 percent of planned ATOS inspections
were not completed. Once again, DOT OIG recommended that the FAA strengthen its national
oversight and accountability, and once again the DOT OIG reported that the FAA did not fully
address its recommendations. A third report in 2010 found continued problems with ATOS
implementation and contained seven recommendations for the reform of ATOS processes to,
again, make FAA oversight consistent and sufficient. Six out of the seven DOT OIG
recommendations were not heeded to DOT OIG’s satisfaction.26
22
U.S. Department of Transportation, Federal Aviation Administration, Review of FAA’s Safety Oversight of
Airlines and Use of Regulatory Partnership Programs, AV-2008-057 (Washington, DC, 2008),
https://www.oig.dot.gov/sites/default/files/SWA_Report_Issued.pdf.
23
Ibid.
24
U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on
Aviation, Adequacy of FAA Oversight of Passenger Aircraft Maintenance: Hearing Before the Subcommittee on
Aviation of the Committee on Transportation and Infrastructure, 107th Cong., 1st sess., April 11, 2002 (prepared
statement of Alexis M. Stefani, Assistant Inspector General for Auditing, U.S. Department of Transportation, Office
of Inspector General), https://www.oig.dot.gov/sites/default/files/cc2002146.pdf.
25
U.S. Department of Transportation, Office of the Secretary of Transportation, Office of Inspector General, Safety
Oversight of an Air Carrier Industry in Transition, AV-2005-062 (Washington, DC, 2005),
https://www.oig.dot.gov/sites/default/files/av2005062.pdf.
26
U.S. Department of Transportation, Office of Inspector General, Semiannual Report to Congress October 1, 2009-
March 31, 2010 (Washington, DC, 2010),
https://www.oig.dot.gov/sites/default/files/DOT_Semiannual%20Report%20Oct%202009-March%202010.pdf.
19
National Transportation Safety Board
Following the 1997 Fine Airlines Flight 101 crash that killed four people, the National
Transportation Safety Board (NTSB) issued a recommendation that the FAA incorporate a
feature into ATOS that would allow the system to learn from oversight shortcomings and adapt
to evolving safety environments.27 In 2007, FAA’s then-Acting Administrator Robert Sturgell
responded, outlining the improvements made to ATOS, but noted that “it is the air carrier’s
responsibility to identify its systemic deficiencies, if they exist, and to correct them before they
cause accidents.”28 NTSB responded by calling the ATOS improvements inadequate and
reminding the FAA that, instead of the carrier’s responsibility, it is the FAA’s responsibility to
identify systemic safety problems at a carrier and to ensure that these problems are resolved. The
recommendation was closed in 2009 and classified as an “unacceptable response” from the FAA.
C. Whistleblowers
Culture of Retaliation
From 1993-1997, Mary Rose Diefenderfer served as the FAA Principal Operations
Inspector (POI) at the Seattle FSDO, which has responsibility for oversight of Alaska Airlines.
She was promoted to this position after Robert Lloyd, the previous POI, was transferred to
another office. This transfer came soon after he was warned by his FAA manager to “stop
sending so many enforcement letters to Alaska Airlines.”32 In August 1993, Diefenderfer
27
National Transportation Safety Board, Safety Recommendation A-98-051 (Washington, DC, 2009),
https://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=A-98-051
28
National Transportation Safety Board, Aircraft Accident Report (Washington, DC, 1997), https://reports.aviation-
safety.net/1997/19970807-0_DC86_N27UA.pdf.
29
Whistleblower Protection Act of 1989, Public Law 101-12 (1989),
https://www.govinfo.gov/content/pkg/STATUTE-103/pdf/STATUTE-103-Pg16.pdf.
30
Protection of Certain Disclosures of Information by Federal Employees, Public Law 112-199 (2012),
https://www.govinfo.gov/content/pkg/PLAW-112publ199/pdf/PLAW-112publ199.pdf.
31
Whistleblower Protection Act of 1989, Public Law 101-12 (1989),
https://www.govinfo.gov/content/pkg/STATUTE-103/pdf/STATUTE-103-Pg16.pdf.
32
Diefenderfer v. Peters, C08-958Z (W.D. Washington, June 29, 2009).
20
discovered that Alaska Airlines had falsified training records. She conducted an investigation
that led to a Civil Aviation Security investigation which confirmed her discovery. According to
Diefenderfer, FAA Security warned her that the FAA was displeased with her findings. Three
months later, Diefenderfer was forcibly reassigned to another office. After complaining to the
U.S. Office of Special Counsel (OSC), an investigative team was sent to the Seattle FSDO.
Upon the completion of that investigation, Diefenderfer was reinstated to her position as POI. In
1997, Diefenderfer again reported that Alaska Airlines continued to fly planes with known
mechanical deficiencies and continued falsifying records. She was again removed from her post
as POI and transferred to another office. Diefenderfer left the FAA in November 1999 after
applying for and being turned down for a number of other positions within the agency.
On January 31, 2000, Alaska Airlines Flight 261 crashed into the Pacific Ocean about 2.7
miles north of Anacapa Island, California, killing eighty-eight people. A National
Transportation Safety Board (NTSB) investigation attributed the crash to the failure of the
horizontal stabilizer trim system jackscrew assembly’s acme nuts threads. The nuts threads were
worn down due to inadequate lubrication. 33 Maintenance deficiencies including fraudulent
documents were among the safety concerns disclosed by Ms. Diefenderfer. Committee
Investigators understand Ms. Diefenderfer successfully negotiated a large settlement agreement
with the FAA as a result of her complaint before the Merit Systems Protection Board.
Ms. Diefenderfer is not the only FAA whistleblower to face retaliation. In April 2008,
FAA Aviation Safety Inspector Charalambe “Bobby” Boutris testified before the House
Transportation and Infrastructure Committee revealing there were a number of serious
maintenance violations occurring at Southwest Airlines, and that the FAA, in effect, looked the
other way.34 He was one of a number of whistleblowers involved in the case. The Inspector
General for the Department of Transportation launched an investigation as a result of these
disclosures and found multiple examples of whistleblower retaliation. One example involved an
FAA Hotline complaint, later attributed to a Southwest Airlines employee, which resulted in a
whistleblower being removed from his oversight duties for five months.35 The allegations were
unsubstantiated.
The Inspectors General (IG) of federal departments and agencies are independent offices
that investigate whistleblower claims of fraud, waste, abuse, and mismanagement. The U.S.
Office of Special Counsel (OSC) also receives and investigates federal whistleblower
disclosures. The OSC is an independent agency that reviews disclosures, conducts an
investigation, and refers their findings to the head of the subject agency, which must then report
to the OSC on the findings of an internal investigation and any actions the agency plans to take
33
National Transportation Safety Board, Loss of Control and Impact with Pacific Ocean Alaska Airlines Flight 261
McDonnell Douglas MD-83, N963AS About 2.7 Miles North of Anacapa Island, California January 31, 2000,
AAR-02/01 (Washington, DC, 2002),
https://www.ntsb.gov/investigations/AccidentReports/Reports/AAR0201.pdf.
34
Scott Bronstein, “Whistle-blower: FAA Boss Threatened Career,” CNN, April 3, 2008,
http://edition.cnn.com/2008/POLITICS/04/03/airline.safety/index.html.
35
U.S. Department of Transportation, Office of the Secretary of Transportation, Office of Inspector General, Review
of FAA’s Safety Oversight of Airlines and Use of Regulatory Partnership Programs, AV-2008-057 (Washington,
DC, 2008), https://www.oig.dot.gov/sites/default/files/SWA_Report_Issued.pdf.
21
as a result.36 The OSC will review the report and make a determination as to whether it is
reasonable. The OSC then shares the findings with the Executive Office of the President as well
as the chairmen and ranking members of the congressional committees with oversight
responsibility for the agency involved. Since the beginning of the Committee’s investigation,
fifty-seven whistleblowers have contacted the Committee. Among those, sixteen have consented
to be identified.
In 2012, the FAA Modernization and Reform Act included a provision that created an
Aviation Safety and Whistleblower Investigation Office within the FAA.37 The FAA had
previously implemented an Office of Audit and Evaluation (AAE) and had argued to Congress
that the AAE fulfilled the role of the office defined in the legislation. As stated on their website,
AAE oversees reports related to aviation safety violations, waste, fraud, abuse and
mismanagement, internal FAA rule or policy violations, and whistleblower disclosures.38
The Committee’s investigation reveals that many FAA employees, including managers
and human resource officials, do not clearly understand what constitutes whistleblowing or how
to properly treat employees that make protected disclosures. The Committee interviewed
investigators who were responsible for investigating whistleblower retaliation. These
investigators were not sure what constituted whistleblowing or which FAA office was
responsible for investigating such matters.
In addition to the insufficiency of the AAE, the Committee’s investigation revealed
serious concerns related to credibility. According to documents reviewed by the Committee, in
2014 one of AAE’s own investigators admitted to a colleague that they had been going after
whistleblowers and boasted about how many had been fired as a result.39 The person remains
employed as a manger in the FAA. This issue became well known among the group of
whistleblowers from the 2008 congressional hearings and spread throughout the agency.
Numerous whistleblowers describe a general lack of trust in AAE throughout the agency today.
Many of the whistleblowers that have appealed to the Committee indicated they came to
Congress because they did not trust AAE or the FAA to do the right thing and were fearful of
retaliation.
36
U.S. Government Accountability Office, Whistleblowers: Key Practices for Congress to Consider When
Receiving and Referring Information, GAO-19-432 (Washington, DC, 2019), https://www.gao.gov/products/GAO-
19-432.
37
FAA Modernization and Reform Act of 2012, Public Law 112-95 (2012),
https://www.congress.gov/112/plaws/publ95/PLAW-112publ95.pdf.
38
U.S. Department of Transportation, Federal Aviation Administration, “Office of Audit and Evaluation,” last
modified September 15, 2020, https://www.faa.gov/about/office_org/headquarters_offices/aae/.
39
Memorandum for Record, March 14, 2014, April 18, 2014,
https://www.commerce.senate.gov/services/files/621F43CC-9CFE-45AE-BA35-CD5EF9A60FC4
22
Finding: The Aviation Safety and Whistleblower Investigation Office enacted as part of the
2012 FAA Modernization and Reform Act was not fully implemented and remains
insufficient.
23
VI. Committee Investigation
A. Correspondence with the FAA
On April 2, 2019, Chairman Wicker sent then Acting FAA Administrator Daniel Elwell a
letter requesting information about allegations of inadequate training and certification of FAA
Aviation Safety Inspectors (ASI).40 At the time, the Committee had received whistleblower
disclosures that included allegations that numerous FAA ASIs had not completed required
training. The letter included several specific questions and requests, specifying a response by
April 16, 2019.
On April 4, 2019, Acting Administrator Elwell responded with an interim letter while the
agency gathered the documents requested by the Committee.41 He noted that the FAA Office of
Audit and Evaluation (AAE) had investigated and substantiated an ASI whistleblower disclosure
concerning the lack of training of members of the FAA’s Aircraft Evaluation Group (AEG), but
not those assigned to the Boeing 737 MAX Flight Standardization Board (FSB). Acting
Administrator Elwell stated in part:
On May 2, 2019, sixteen days after the Committee’s response deadline, Acting
Administrator Elwell sent a letter to the Committee that supplemented his April 4th letter.42 In it,
he provided additional information regarding the AAE investigation into Gulfstream VII FSB
members. The case referenced occurred at the AEG office in Long Beach, California.
40
Letter from Roger F. Wicker, Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, to
Daniel Elwell, Acting Administrator, Federal Aviation Administration, April 2, 2019,
https://www.commerce.senate.gov/services/files/e06e1b59-5df4-497b-8f9c-ce80c02f0426.
41
Ibid.
42
Letter from Daniel Elwell, Acting Administrator, Federal Aviation Administration, to Roger F. Wicker,
Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, May 2, 2019,
https://www.commerce.senate.gov/services/files/4588e0e4-976b-4d9d-948d-efe8e6a2cdfc.
24
Following the FAA’s responses to his initial request, on July 31, 2019, Chairman Wicker
sent then-Acting Administrator Elwell a second letter requesting additional information.43 This
letter requested un-redacted reports of investigations related to three key whistleblowers,
communications that could corroborate a number of whistleblower claims, and documentation to
support the FAA’s claim that ASIs serving on the Boeing MAX FSB were fully qualified for the
tasks that they performed, among other items.44
After not receiving any requested documents, on September 5, 2019, Committee staff
agreed to prioritize and clarify several specific items in Chairman Wicker’s letter to assist the
FAA in expediting its response. To date, the Committee has received responses to fewer than
half of these prioritized items. Most of the requests contained in Chairman Wicker’s July 31,
2019, letter remain outstanding. On August 12, 2019, Steve Dickson was sworn in for a five-
year term as the FAA Administrator. Dickson had recently retired as the Senior Vice President
of Flight Operations for Delta Airlines.45
On October 23, 2019, Chairman Wicker sent a letter to FAA Administrator Dickson
expressing his disappointment in the FAA’s lack of sufficient and timely responses to his
requests for information.46 In his letter, the Chairman requested that the FAA make employees
available to Committee staff for interviews.
On October 30, 2019, Chairman Wicker sent a letter to FAA Administrator Dickson
expressing concern about the “Skyline Aircraft” issue at Southwest Airlines.47 The concern
included allegations of ineffective oversight of Southwest Airlines by FAA related to inspections
and airworthiness certifications for eighty-eight airplanes purchased from foreign carriers.
Chairman Wicker requested that Administrator Dickson provide updates on all developments
related to the issue.
On December 20, 2019, as a result of the many outstanding requests, Chairman Wicker
wrote to FAA Administrator Dickson to request that twenty-one FAA employees be made
43
Letter from Roger F. Wicker, Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, to
Daniel Elwell, Acting Administrator, Federal Aviation Administration, July 31, 2019,
https://www.commerce.senate.gov/services/files/A22129F6-E00F-4D4D-B22A-65DAF61B2227.
44
Letter from Roger F. Wicker, Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, to
Daniel Elwell, Acting Administrator, Federal Aviation Administration, July 31, 2019,
https://www.commerce.senate.gov/services/files/A22129F6-E00F-4D4D-B22A-65DAF61B2227.
45
U.S. Department of Transportation, Federal Aviation Administration, “Steve Dickson, Administrator,” last
modified August 27, 2019,
https://www.faa.gov/about/key_officials/dickson/#:~:text=Steve%20Dickson%20was%20sworn%20in,Operations%
20for%20Delta%20Air%20Lines.
46
Letter from Roger F. Wicker, Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, to
Stephen Dickson, Administrator, Federal Aviation Administration, October 23, 2019,
https://www.commerce.senate.gov/services/files/A5D5E390-6675-4132-A542-69C798543E86
47
Letter from Roger F. Wicker, Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, to
Stephen Dickson, Administrator, Federal Aviation Administration, October 30, 2019,
https://www.commerce.senate.gov/services/files/5EB3BEC9-BCC6-4CCB-A1CD-FE9402C52477
25
available for interviews with Committee staff. 48 This letter came in response to the DOT’s slow
response and handling of the interview requests.
By mid-June 2020, the Committee had been permitted to interview four of the twenty-
one requested FAA staff over the previous six months. On June 17, 2020, Chairman Wicker
presided over a hearing titled, examining the Federal Aviation Administration’s Oversight of
Aircraft Certification,51 in which FAA Administrator Dickson provided testimony. Chairman
Wicker summarized oversight efforts of the Committee and expressed his dissatisfaction with the
responsiveness to his numerous requests for documents and staff interviews. Dickson pledged to
expand efforts of the agency to improve the agency’s responsiveness.52
Two days after the hearing, the FAA made a fifth witness available. The Committee
interviewed the sixth and seventh witnesses in July. Chairman Wicker had requested FAA
Administrator Dickson to make twenty-one employees available for interview in his December
20, 2019, letter. In the six months following the request, the FAA made four employees
available for interview. Following the June 16, 2020, Committee hearing, the agency made a
total of seven additional employees available for interview between June and October. Three of
48
Letter not released to the public.
49
Letter from Roger F. Wicker, Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, to
Stephen Dickson, Administrator, Federal Aviation Administration, March 11, 2020,
https://www.commerce.senate.gov/services/files/32347991-3947-4EB7-A097-840E198D48DD
50
Letter from Stephen Dickson, Administrator, Federal Aviation Administration, to Roger F. Wicker, Chairman,
U.S. Senate Committee on Commerce, Science, and Transportation, April 14, 2020,
https://www.faa.gov/about/plans_reports/congress/media/Day-
Night_Average_Sound_Levels_COMPLETED_report_w_letters.pdf.
51
U.S. Congress, Senate, Committee on Commerce, Science, and Transportation, Examining the Federal Aviation
Administration’s Oversight of Aircraft Certification: Hearing Before the Committee on Commerce, Science, and
Transportation, 116th Cong., 2d sess., June 17, 2020, webcast at:
https://www.commerce.senate.gov/2020/6/examining-the-federal-aviation-administration-s-oversight-of-aircraft-
certification.
52
U.S. Congress, Senate, Committee on Commerce, Science, and Transportation, Examining the Federal Aviation
Administration’s Oversight of Aircraft Certification: Hearing Before the Committee on Commerce, Science, and
Transportation, 116th Cong., 2d sess., June 17, 2020 (prepared statement of Stephen M. Dickson, Administrator,
Federal Aviation Administration), https://www.commerce.senate.gov/services/files/2CD68098-DD6D-46FA-BD49-
2796F03C1B60.
26
the employees requested for interview by Committee investigative staff had separated from the
FAA after the Committee had made its request, but were not made available prior to their
departure from the agency. In all, the Committee has been allowed to interview less than half of
the employees originally requested a year ago. Included among the employees remaining to be
interviewed are the most senior officials in Flight Standards who are responsible for the staff and
programs for which the majority of the allegations being investigated by the Committee have
been made.
Following several of the FAA employee interviews conducted by Committee
investigators, investigators requested clarification for several questions posed during interviews.
Additionally, documentation was requested to support employee testimony rebutting
whistleblower allegations. One example related to an allegation by whistleblowers that an FAA
ASI was granted a new type rating on the Gulfstream VII airplane without completing the
required ground training. Whistleblowers claimed the FAA employee who was the subject of the
interview did not attend any of the required ground school portion of the FSB. During the
interview, the employee asserted he/she did in fact attend all of the required training with the
whistleblower. Committee staff inquired about the availability of attendance records for the
training in question. Interview attendees were not sure if there were such records. Department
of Transportation’s Office of General Counsel (DOT OGC) assured Committee investigators
they would inquire about these records and provide an update. While awaiting follow up from
DOT OGC, Committee investigators obtained copies of attendance records for the ground
training in question. The records captured several days of training for which the employee in
question was not identified on the attendance records. Committee investigative staff notified
DOT OGC of this discrepancy, emphasized concern and requested agency official travel records
for the employee in question in order to ascertain whether he/she in fact attended the training.
Committee staff have not received a response to this request to date. The evidence and
statements reviewed by Committee staff suggest the employee did not attend the training as
required and may have lacked candor in answering questions during the interview.
In another example, Committee staff learned that audio recordings were made of weekly
meetings which allegedly captured unethical conduct related to aircraft certification in an FAA
Certificate Management Office (CMO). On August 25, 2020, Committee staff notified DOT
OGC about these potential recordings, and requested their preservation and production to the
Committee. On August 28, 2020, DOT OGC acknowledged the request and requested additional
focus. On August 31, 2020, Committee staff narrowed the recording request to a specific time
frame and one specific office. To date the Committee has not received confirmation as to
whether these recordings have been located or if/when they will be provided. A whistleblower
has confirmed existence of the recordings and advised he/she has made a backup copy of the
recordings in question to preserve as evidence.
27
B. Concerns Surrounding the FAA’s Responses
53
Letter from Henry J. Kerner, Special Counsel, U.S. Office of Special Counsel, to Donald J. Trump, President of
the United States, September 23, 2019, https://osc.gov/Documents/Public%20Files/FY19/DI-19-2964/DI-19-
2964%20Redacted%20Letter%20to%20the%20President%202.pdf.
54
Letter from Daniel Elwell, Acting Administrator, Federal Aviation Administration, to Roger F. Wicker,
Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, May 2, 2019,
https://www.commerce.senate.gov/services/files/4588e0e4-976b-4d9d-948d-efe8e6a2cdfc.
55
Ibid.
56
Letter from Henry J. Kerner, Special Counsel, U.S. Office of Special Counsel, to Donald J. Trump, President of
the United States, September 23, 2019, https://osc.gov/Documents/Public%20Files/FY19/DI-19-2964/DI-19-
2964%20Redacted%20Letter%20to%20the%20President%202.pdf.
28
requirements. Further, 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.’
This statement appears inaccurate, however, as both the AAE
investigation and the evidence obtained by OSC shows the 737 MAX
FSB was staffed by undertrained AEG ASIs. Further, the 737 MAX
ASIs do not have their own unique training requirements and were
apparently not fully qualified to participate in the FSB certification
duties.57
The OSC also stated that as part of a related and ongoing investigation it was conducting
into possible prohibited personnel practices committed by FAA employees against the
whistleblower, it had obtained internal FAA communications and had conducted employee
interviews, both of which “adduced credible information directly contradicting the agency’s
assertions to the [Commerce] Committee.”58 The OSC stated that 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.”59
In its response following the publication of OSC’s letter to the President, the FAA
maintained that all ASIs on the Boeing 737 MAX FSB had completed the requisite training for
the job functions that they performed. The FAA contested any linkage between improper
training and the MAX crashes, but did agree that invalid certifications done by unqualified ASIs
on the Gulfstream VII FSB were problematic and raised safety concerns.
According to the AAE’s investigation, an ASI had informed his manager in early July 2018 that
two ASIs assigned to the Gulfstream VII FSB had not completed the necessary training to
participate in the FSB. AAE’s investigation was completed on February 22, 2019, and concluded
that ASIs assigned to both the Long Beach and Seattle AEGs did not meet certain training
requirements under FAA policy. AAE also found that management at the Long Beach AEG had
retaliated against the ASI who had raised the initial concerns. The Acting Administrator
included FAA management’s response to the three recommendations made by AAE.
As part of the FAA response to safety concerns, then-Acting Administrator Elwell stated
the Gulfstream VII FSB work at all offices had been stopped pending review of the training
histories of the ASIs in question.60 This initial investigation was completed by the Aircraft
Evaluation Division (AED). They asserted that all ASIs had in fact completed the requisite
training for their duties on the FSB. After this finding, the ASI who initially raised his concerns
57
Ibid.
58
Ibid.
59
Ibid.
60
Letter from Daniel Elwell, Acting Administrator, Federal Aviation Administration, to Roger F. Wicker,
Chairman, U.S. Senate Committee on Commerce, Science and Transportation, May 2, 2019,
https://www.commerce.senate.gov/services/files/4588e0e4-976b-4d9d-948d-efe8e6a2cdfc
29
elevated them to the DOT OIG, who referred the investigation to both the FAA’s Office of
Security and Hazardous Materials (ASH), as well as to AAE.
The then-Acting Administrator went on to say that after the AAE report was issued,
FAA Flight Standards reviewed the report and evaluated the training requirements in question.
According to the Acting Administrator, Flight Standards found that despite AAE’s assessment
otherwise, the ASIs working on the Long Beach FSB had actually met the training requirements
and that the complaint was merely due to “confusion” about the training requirements.61
Additionally, Flight Standards asserted that On-the-Job Training (OJT) is sufficient for
conducting certification or type rating work. Acting Administrator Elwell confirmed that the
manager responsible for retaliating against the whistleblower was no longer employed by the
FAA. In his July 2019 letter, Chairman Wicker asked that Committee staff be allowed to
interview the employee, but the employee separated from the FAA before the interview could
take place.
The AAE report attached to Acting Administrator Elwell’s letter, however, paints a
starkly different picture of the training deficiencies found in both the Seattle and Long Beach
AEG offices. As mentioned, AAE’s investigation found that the ASIs in question did not meet
training requirements under FAA policy. AAE also found that OJT for ASIs assigned to an AEG
is not sufficient training to certify ASIs to issue type ratings. AAE stated that:
The AAE report included three recommendations. First, the FAA should cease all type
rating work by ASIs found to not meet training requirements. In his April 22 management
response, Acting Administrator Elwell stated that the division manager had immediately stopped
all FSB activity. However, this is inconsistent with information obtained from the whistleblower
who raised the initial concerns. According to several whistleblowers, work on the Gulfstream
VII FSB never ceased. Chairman Wicker’s July 31, 2019, letter requested documentation
supporting this work stoppage, and this request remains outstanding as of the date of this
report.62 FAA staff interviews revealed inconsistencies on how or if this directive was
communicated. One manager stated that he directed the work stoppage and it was his idea.
61
Letter from Daniel Elwell, Acting Administrator, Federal Aviation Administration, to Roger F. Wicker,
Chairman, U.S. Senate Committee on Commerce, Science and Transportation, May 2, 2019,
https://www.commerce.senate.gov/services/files/4588e0e4-976b-4d9d-948d-efe8e6a2cdfc.
62
Letter from Roger F. Wicker, Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, to
Daniel Elwell, Acting Administrator, Federal Aviation Administration, July 31, 2019,
https://www.commerce.senate.gov/services/files/A22129F6-E00F-4D4D-B22A-65DAF61B2227.
30
Another manager was sure it was “written in an email or a memo.”63 To date, no confirmation of
any work stoppage has been provided to the Committee.
The second recommendation was for Flight Standards to remove any derogatory
information from the whistleblower’s personnel files related to their whistleblowing. Acting
Administrator Elwell stated in his second response letter that this had been completed. The
whistleblower has since settled his complaint with the agency.
AAE’s third recommendation was that the Executive Director of Flight Standards, Rick
Domingo, provide a written apology to the whistleblower for the retaliation. Acting
Administrator Elwell stated that Flight Standards agreed with this recommendation but that the
letter of apology was still being drafted. This apology letter was eventually sent on July 19,
2019, after Committee staff engaged DOT OGC on the outstanding matter. In the response letter,
Rick Domingo erroneously refers to the Seattle AEG as the “Aircraft Employment Group,”
instead of the Aircraft Evaluation Group. 64 While agency officials assert this mischaracterization
as a typo, several whistleblowers contend it is not and illustrates just how out of touch with the
organization the Director of Flight Standards is. The Director of Flight Standards is among the
employees requested by Chairman Wicker to be interviewed but was not made available over the
last year.
In a subsequent investigation involving the FAA’s correspondence summarized above,
the OSC found that, “FAA’s Official responses to Congress appear to have been misleading in
their portrayal of FAA employee training and competency”. The Committee concludes the
representations by the FAA were, in fact, misleading at the very least. Whistleblowers contend
actions by FAA senior officials were designed to cover up their incompetence.
63
Senate Commerce Committee Staff has these notes from the call with the managers.
64
Letter from Rick Domingo, Executive Director, Flight Standards Service, United States Department of
Transportation, Federal Aviation Administration, July 19, 2019,
https://www.commerce.senate.gov/services/files/110997AE-AC0D-4558-8D34-15E2D3ABAD55
31
In another case, whistleblowers allege the FAA did not sufficiently investigate a
complaint that an employee left a simulator training early while remaining on the clock. The
investigator assigned to the investigation confirmed he/she did not substantiate the allegation
beyond establishing that the employee left the simulator early. The investigator did not determine
where the employee had been when he/she was supposed to be observing the simulator training
event despite allegations of outside employment. Committee staff asked if the investigator made
cursory investigative queries regarding the absence, including electronic physical security or
computer access logs, surveillance cameras, or government cell phone location for the time in
question. The investigator confirmed that he/she had not taken any of those steps and had no
explanation as to why he/she had not. This allegation was simply not fully investigated.
The FAA’s investigative reports also raise credibility concerns. When asked about the
drafting of reports of investigations or interview summaries, an FAA investigator indicated it is
common for the investigator to assist a witness or interviewee in writing a statement following
an interview. In some cases, the investigator stated they often write the statement for the witness
or interviewee to sign.
Committee investigators reviewed several instances of staff from FAA lines of business
being detailed to conduct investigations. AAE, the office which was intended to conduct
independent whistleblower investigations, often utilizes inspectors from the field to conduct
investigations. FAA officials cited lack of resources as the reason AAE often relies on staff in
the field to conduct their investigations.
C. Other Investigations
On September 23, 2019, the OSC sent a letter to the President outlining their findings
related to a whistleblower case.65 The same whistleblower had made numerous protected
disclosures to the Committee since March 2019. The Whistleblower claimed that ASIs on the
FSB for the Gulfstream VII aircraft lacked required training, that eleven out of seventeen
Operations ASIs in the Seattle AEG lacked required training, and that these unqualified
inspectors had administered hundreds of invalid certifications that qualified pilots to operate
aircraft. The OSC found that of the twenty-two ASIs identified in the complaint, sixteen of them
had not completed formal training classes. Of these sixteen ASIs, three of them served on the
Boeing 737 MAX FSB. The OSC also stated that, based on the FAA’s April 4th and May 2nd,
2019, letters to the Committee, “FAA’s official responses to Congress appear to have been
misleading in their portrayal of FAA employee training and competency.”
65
Letter from Henry J. Kerner, Special Counsel, U.S. Office of Special Counsel, to Donald J. Trump, President of
the United States, September 23, 2019, https://osc.gov/Documents/Public%20Files/FY19/DI-19-2964/DI-19-
2964%20Redacted%20Letter%20to%20the%20President%202.pdf.
32
In their response following the publication of OSC’s letter to the President, the FAA
maintained that all ASIs on the MAX FSB had completed the requisite training for the job
functions that they performed. The FAA contested any linkage to the MAX crashes, but did
allow that invalid certifications done by unqualified ASIs were problematic and raised safety
concerns.
Several whistleblowers, both anonymous and identified in this report, have filed
complaints with the OSC. In many instances, Committee staff have informed and referred
these individuals to the OSC. The Committee will remain engaged as appropriate with OSC
on these pending complaints.
On September 26, 2019, the NTSB issued seven safety recommendations that resulted
from the NTSB’s participation in the Lion Air and Ethiopian Airlines crash investigations. In
its report, the NTSB raised concerns with the assumptions that Boeing used when designing
the Maneuvering Characteristics Augmentation System (MCAS). Specifically, while Boeing
based its design assumptions on FAA guidance, the NTSB concluded that Boeing did not
“adequately consider and account for the impact that multiple flight deck alerts and
indications could have on pilots’ responses to the hazard.”66
Essentially, when Boeing ran the flight test in which they tested the MCAS, they did not
have any other alarms or alerts going off that could have theoretically been going off in a
situation that led to an MCAS activation. In both the Lion Air and Ethiopian Airlines accidents,
the preliminary reports show that multiple alerts were going off in the cockpit.67 The NTSB
stated that these “multiple alerts and indications can increase pilots’ workload, and the
combination of the alerts and indications did not trigger the accident pilots to immediately
perform” the action Boeing assumed they would take.68 The NTSB recommended that the FAA
develop tools and methods to validate the assumptions on pilot recognition and response as part
of the design certification process.
Furthermore, the NTSB recommended that since the FAA works to harmonize these
processes with other international civil aviation authorities, the FAA should encourage these
authorities to evaluate any changes that may be necessary. The NTSB also raised concerns that
in situations where pilots encounter multiple alerts, which could potentially require multiple
crew actions, it would be beneficial to provide pilots with a way to understand which actions
they should take first.69 The NTSB recommended the FAA develop design standards for
66
National Transportation Safety Board, Safety Recommendation Report: Assumptions Used in the Safety
Assessment Process and the Effects of Multiple Alerts and Indications on Pilot Performance, ASR-19-01
(Washington, DC, 2019), https://www.ntsb.gov/investigations/AccidentReports/Reports/ASR1901.pdf.
67
Ibid.
68
Ibid., 7.
69
Ibid., 8.
33
“aircraft system diagnostic tools that improve the prioritization and clarity of failure indications”
to assist pilots in their responses.70 Several incidents detailed in this Committee investigative
report remain under investigation by the NTSB.
On June 1, 2019, the FAA convened the Joint Authorities Technical Review (JATR) to
review the certification of the flight control system on the Boeing 737 MAX.71 On October 11,
2019, the JATR published its findings and twelve main recommendations.72 The report
criticized the FAA for relying on outdated certification procedures, having insufficient technical
staff, and failing to incorporate realistic “human factors” into its assessments. The report also
faulted Boeing for failing to adequately update the FAA on changes to the MCAS design, and
having internal procedures that made it difficult for Boeing engineers to communicate directly
with FAA engineers.73
The JATR recommended that the FAA update its regulations, guidance, and certification
procedures to account for more complex, automated, and interdependent aircraft designs. As
changes to the MCAS system were made in design, the JATR recommended the FAA ensure
more involvement in early-stage design assumptions, especially for proposed design changes.
Variant aircraft (such as the Boeing 737 MAX) are based on an aircraft whose type certification
is roughly 40-years-old; however, technology has been added to the aircraft through different
variations of the original type certification. Therefore, the JATR recommended that certification
must account for the cumulative impacts of new systems and modifications on the entire aircraft
“system” (including subsystems, flight crews, and maintenance crews).74 The JATR
recommended that the FAA ensure the FAA office overseeing Boeing’s certification activities is
adequately staffed and has the right staff experience level. Because the FAA and Boeing have
certain design assumptions based on how a crew will respond in certain events, which may not
currently be valid, the JATR recommended that the FAA put more resources into “human
factors” analysis for certification.75
70
National Transportation Safety Board, “Accident Report Detail: Safety Recommendation Report: Assumptions
Used in the Safety Assessment Process and the Effects of Multiple Alerts and Indications on Pilot Performance,”
https://ntsb.gov/investigations/AccidentReports/Pages/ASR1901.aspx.
71
David Shepardson and Jamie Freed, “FAA Failed to Properly Review 737 MAX Jet’s Anti-stall System: JATR
Findings,” Reuters, October 11, 2019, https://www.cnbc.com/2019/10/11/faa-failed-to-properly-review-737-max-
jet-anti-stall-system-jatr-findings.html.
72
Joint Authorities Technical Review, Boeing 737 MAX Flight Control System: Observations, Findings, and
Recommendations (Washington, DC, 2019),
https://www.faa.gov/news/media/attachments/Final_JATR_Submittal_to_FAA_Oct_2019.pdf.
73
Ibid.
74
Ibid.
75
Ibid.
34
Department of Transportation Office of Inspector General
On June 20, 2018, DOT OIG initiated an audit of FAA’s safety oversight of Southwest
Airlines.76 DOT OIG specified that the main objective of this audit was to assess the FAA’s
oversight of Southwest Airline’s risk management systems. The audit was opened as a result of
“recent events (that) have raised concerns about FAA’s safety oversight, particularly for
Southwest Airlines.”77 DOT OIG stated in its audit announcement that it had received a
complaint regarding a number of operational issues at Southwest Airlines, including pilot
training deficiencies. On October 29, 2019, DOT OIG held a briefing for the Committee staff to
share a number of preliminary findings and concerns, including abuse of Aviation Safety Action
Program (ASAP), performance weight and balance noncompliance, and the “Skyline Aircraft”
issues.
On February 11, 2020, the DOT OIG released its audit of the FAA’s oversight of
Southwest Airlines.78 Among other issues, the audit found that Southwest had put “17.2 million
passengers at risk” with the Skyline Aircraft program by operating aircraft in unknown
airworthiness conditions, confirming allegations made to the Committee by Inspector Boutris
and other whistleblowers.79 The audit also found that Southwest “regularly and frequently
communicated incorrect aircraft weight and balance data to its pilots.” DOT OIG stated that the
FAA “cannot provide assurance that the carrier (Southwest) operates at the highest degree of
safety in the public’s interest, as required by law.”80 The FAA concurred with all eleven of DOT
OIG’s recommendations to improve FAA’s oversight of Southwest Airlines.
The Committee remains engaged with DOT OIG on its audit and investigations related to
aviation safety, including the 737 MAX. On June 29, 2020, the DOT OIG released an initial
report regarding the 737 MAX.81 This is the first installment of their reporting and is largely a
76
Memorandum from Matthew E. Hampton, Assistant Inspector General for Aviation Audits, Office of Inspector
General, U.S. Department of Transportation, to the Director of Audit and Evaluation, U.S. Department of
Transportation, June 20, 2018, https://www.oig.dot.gov/sites/default/files/Audit%20Announcement%20-
%20FAA%20Oversight%20of%20Southwest%20Airlines.pdf.
77
Ibid.
78
U.S. Department of Transportation, Office of Inspector General, FAA Has Not Effectively Overseen Southwest
Airlines’ Systems for Managing Safety Risk, AV2020019 (Washington, DC, 2020),
https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20Southwest%20Airlines%20Final%20Repo
rt%5E02.11.2020.pdf.
79
Ibid., 14.
80
Ibid., 14.
81
U.S. Department of Transportation, Office of Inspector General, Timeline of Activities Leading to the Certification
of the Boeing 737 MAX 8 Aircraft and Actions Taken After the October 2018 Lion Air Accident, AV2020037
(Washington, DC, 2020),
35
chronology of the events surrounding the crashes. Due to the ongoing criminal investigation,
scarce details beyond what has been revealed in the related audits and other reports are available
to the Committee. The Committee is hopeful that this complex review and criminal investigation
will answer many questions and provide accountability as necessary.
https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20Boeing%20737%20MAX%20Certification
%20Timeline%20Final%20Report.pdf.
82
U.S. Department of Transportation, Office of Inspector General, FAA Lacks an Effective Staffing Model and Risk-
Based Oversight Process For Organization Designation Authorization, AV-2016-001 (Washington, DC, 2015),
https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20ODA%20Final%20Report%5E10-15-
15.pdf.pdf.
83
Ibid.
84
U.S. Department of Transportation, Office of Inspector General, FAA Has Not Effectively Overseen Southwest
Airlines’ Systems for Managing Safety Risks, AV2020019 (Washington, DC, 2020),
https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20Southwest%20Airlines%20Final%20Repo
rt%5E02.11.2020.pdf.
85
Ibid.
86
Ibid.
87
U.S. Department of Transportation, Office of Inspector General, FAA Needs to Improve Its Oversight to Address
Maintenance Issues Impacting Safety at Allegiant Air, AV2020013 (Washington, DC, 2019),
https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20Allegiant%20Air%20Final%20Report.pdf.
88
Ibid.
36
Perform a comprehensive review of FAA’s root cause analysis training to ensure it meets
agency expectations. Modify training, as appropriate, based on the review and require
inspectors to complete the course(s) or offer inspectors access to industry-based training
programs.89
On January 31, 2020, the Committee released a fact sheet detailing whistleblower
allegations of misconduct at the FAA FSDO in Honolulu, Hawai’i.90 As part of its investigation,
the Committee referred information to the DOT OIG for investigation. The Committee recently
received additional information related to the airworthiness of the airplane involved in the
skydiving flight fatal accident that killed 11 in Hawai’i in June 2019. This information has been
shared to supplement the previous referral. The DOT OIG’s investigation is ongoing.
Committee staff will continue to make such referrals as additional information is received and
developed.
Finding: Acting-Administrator Elwell’s response to Chairman Wicker’s letter was misleading.
Finding: An FAA Aviation Safety Inspector (ASI) may have lacked candor when asserting
they completed all FSB ground training prior to receiving a check ride and subsequent type
rating for the Gulfstream VII.
89
Ibid.
90
U.S. Senate Committee on Commerce, Science, and Transportation, “Fact Sheets: Whistleblower Allegations of
Misconduct at the FAA Flight Standards District Office in Honolulu, Hawai’i,” January 31, 2020,
https://www.commerce.senate.gov/2020/1/whistleblower-allegations-of-misconduct-at-the-faa-flight-standards-
district-office-in-honolulu-hawai-i.
37
VII. Whistleblower Disclosures
The Committee’s numerous interviews indicate the FAA fosters a culture that has a
dismissive attitude toward whistleblowers, which often leads to retaliation. At least one
investigator tasked with investigating misconduct and whistleblower retaliation was not sure
what constituted a protected disclosure for whistleblowing. That investigator agreed that if
he/she did not understand what constituted whistleblowing, it would be impossible for him/her to
identify it in the course of an investigation, much less refer it to the appropriate office for action.
Other interviews revealed that there is significant internal confusion in the FAA as to who is
responsible for investigating whistleblower retaliation and misconduct.
In one instance of hostility toward whistleblowers, FAA managers initiated what
appeared to be a retaliatory management inquiry against a whistleblower and received support
from front line and supervisory human resource personnel until a senior official intervened and
stopped the action. In this example, several lines of business and multiple levels of management
believed the whistleblower was not permitted to “go outside” the FAA with a safety disclosure to
the Department of Transportation’s Office of Inspector General (DOT OIG), and many officials
supported investigating them.
Several of the Committee’s whistleblowers agreed to have their names disclosed during
FAA staff interviews to further discussion of specific allegations. Some senior managers
interviewed were openly dismissive when the Committee mentioned specific whistleblowers.
One manager characterized a whistleblower’s disclosures as “rants,” and another dismissed a
whistleblower’s concern by claiming the whistleblower is difficult to work with in the FAA.
When confronted with details of specific events, several managers revealed their lack of
understanding of the policies and guidance governing their responsibilities. The Committee’s
extensive review of detailed records and communications from whistleblowers supported a high
degree of credibility to their allegations. The interviews of FAA senior managers provided
further credibility to many whistleblower assertions while raising questions about the managers’
own qualifications and understanding of a manager’s roles.
The Committee investigation found a persistent culture of whistleblower retaliation in the
FAA. This finding is well supported by several Office of Inspector General (OIG), Office of
Special Counsel (OSC), Office of Audit and Evaluation (AAE), and media reports, in addition to
several court cases/law suits and numerous congressional oversight hearings.
On October 29, 2018, a B737-8 MAX operating as Lion Air flight 610 crashed shortly
after takeoff in Jakarta, Indonesia. On November 5, 2018, evidence emerged of a potential
contributor to the accident. The FAA conducted a preliminary risk assessment using a safety
process established in FAA order 8110.107A, Monitor Safety/Analyze Data (MSAD). Based on
the FAA’s finding in the risk assessment, the FAA determined urgent mandatory action was
38
needed. The FAA then issued Emergency AD, requiring flight crews to use a revised runaway
stabilizer operational procedure if they encountered certain conditions.91
On March 10, 2019, Ethiopian Airlines flight 302, also a Boeing 737 MAX airplane,
crashed shortly after takeoff in Addis Ababa, Ethiopia. Physical evidence from the crash site
indicated that the aircraft was in a configuration that would have an armed Maneuvering
Characteristics Augmentation System (MCAS).92 After finding a potential relationship between
the two crashes, the FAA issued an Emergency Order of Prohibition grounding all 737 MAX
aircraft.
Over the past twenty months, Committee staff have received disclosures from multiple
whistleblowers alleging coziness between the FAA and Boeing, and lack of diligent oversight by
the FAA in general, specifically in the certification of the 737 MAX. Multiple whistleblowers
alleged Boeing intentionally misled FAA certification efforts and downplayed the significance of
MCAS. In May 2019, whistleblowers identified Boeing Chief Technical Pilot Mark Forkner to
Committee investigative staff as a person who had intentionally misled the FAA to expedite 737
MAX certification to the benefit of Boeing. In his July 31, 2019, letter to Acting FAA
Administrator Daniel Elwell,93 Chairman Wicker requested “all communications between Mark
Forkner and FAA employees.”
On September 5, 2019, after a series of limited productions in response to the Chairman’s
July 31, 2019, letter, Committee staff held a call with Department of Transportation’s Office of
General Counsel (DOT OGC) to discuss the slow pace of document production and ways in
which certain requests could be prioritized. As a result of that call, Committee staff sent an email
on September 5, 2019, prioritizing a much narrower range of the request. Among these
prioritizations were “all communications between Mark Forkner and FAA employees.”
On October 7, 2019, four weeks after Committee staff sent a list of prioritized items, the
FAA produced a limited set of emails between Mark Forkner and FAA employees. The emails
were routine correspondence from 2014 to 2018. None were of particular interest. In its
production to the Committee, DOT OGC stated, “this production is responsive to G1,” referring
to the request for “all communications between Mark Forkner and FAA employees.” Committee
staff responded by asking if the production constituted a complete response to G1, and never
received a response.
Just over a week later, on October 18, 2019, numerous media outlets reported on
salacious emails and text messages by Boeing employees about their efforts on the 737 MAX
91
U.S. Department of Transportation, Federal Aviation Administration, Preliminary Summary of the FAA’s Review
of the Boeing 737 MAX, version 1 (Washington, DC, 2020), https://www.faa.gov/news/media/attachments/737-
MAX-RTS-Preliminary-Summary-v-1.pdf.
92
Ibid.
93
Letter from Roger F. Wicker, Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, to
Daniel Elwell, Acting Administrator, Federal Aviation Administration, July 31, 2019,
https://www.commerce.senate.gov/services/files/A22129F6-E00F-4D4D-B22A-65DAF61B2227
39
certifications.94 Later the same day, FAA legislative affairs staff contacted the Senate
Commerce, Senate Appropriations, House Appropriations, and House Transportation and
Infrastructure Committees to pass along instant messages between Mark Forkner and another
Boeing employee that Boeing had provided to DOT. These instant messages were the subject of
the media reporting and had been exchanged during November 2016. In the messages, Mark
Forkner expressed concern that the MCAS system is “running rampant” and that the plane is
“trimming itself like crazy” during simulated test flights. Forkner stated that he “basically lied to
the regulators (unknowingly).” Included in the transmittal of these instant messages was a letter
from Administrator Dickson to Boeing CEO Dennis Muilenburg. In his letter, Administrator
Dickson asked for an immediate explanation of the instant messages and why they were only
transmitted to DOT the day before, when Boeing had discovered the messages “months ago.”95
Five hours after transmitting the instant messages that it had received from Boeing, the
FAA sent a second disclosure to the four committees that contained emails between Mark
Forkner and FAA employees. The FAA chose to redact personal information of FAA
employees.
Emails of particular note are summarized below:96
On October 5, 2015, Forkner tells an FAA employee that he is on his way to “jedi mind
trick these people into buying some airplanes.”
On March 30, 2016, Forkner emails an FAA employee requesting that all reference to
MCAS be removed from the Flight Crew Operations Manual and training, “as it is
completely transparent to the flight crew and only operates WAY outside of the normal
operating envelope[.]”
On November 3, 2016, Forkner emails an FAA employee stating that he is “doing a
bunch of travelling through the next few months; simulator validations, jedi mind tricking
regulators into accepting the training that I got accepted by the FAA etc.”
On January 17, 2017, Mark Forkner reminds an FAA employee that they had agreed to
delete MCAS from the “draft FSB” because it is “way outside the normal operating
envelope.”
On February 9, 2018, Forkner emails an FAA employee stating that he supports
removing differences table from the 737 MAX FSB report if the FSB can “jedi mind trick
280 into doing what they let Brand A get away with (i.e. not publishing them)[.]”
94
David Gelles and Natalie Kitroeff, “Boeing Pilot Complained of ‘Egregious’ Issue With 737 Max in 2016,” The
New York Times, October 18, 2019, https://www.nytimes.com/2019/10/18/business/boeing-flight-simulator-text-
message.html.
95
Letter from Steve Dickson, Administrator, Federal Aviation Administration, U.S. Department of Transportation,
to Dennis Muilenburg, President and Chief Executive Officer, The Boeing Company, October 18, 2019,
https://www.faa.gov/news/media/attachments/Boeing_letter.pdf.
96
Emails from Mark Forkner, Boeing, October 5, 2015, March 30, 2016, November 3, 2016, November 9, 2016,
January 17, 2017, February 9, 2018,https://www.commerce.senate.gov/services/files/40B117EA-4C4F-496B-91F0-
D7A4816DF71E
40
These emails show Mark Forkner attempting to get the MCAS system removed from all
pilot training as well as the Flight Crew Operations Manual (FCOM) well after he had
discovered that the MCAS system was not behaving correctly.
Later on October 18, 2019, the DOT OGC produced additional documents responsive to
the Committee’s request of “all communications between Mark Forkner and FAA employees.”
This production did not include any of the disturbing emails sent hours earlier by the FAA
legislative affairs office to four Congressional committees. It included some duplicates from the
October 7, 2019, production and contained mostly routine scheduling emails.
In summary:
On July 31, 2019, the Committee requested Mark Forkner’s communications with FAA
employees.
On September 5, 2019, the Committee prioritized Mark Forkner’s communications with
FAA employees.
On October 7, 2019, the FAA sent a limited number of unimportant emails between Mark
Forkner and FAA employees.
On October 18, 2019:
o FAA transmitted instant messages from Mark Forkner to another Boeing
employee that detail Forkner’s concerns in 2016 about the MCAS system and his
misleading statements to regulators.
o FAA transmitted emails from Mark Forkner to FAA employees in which Forkner
asks that MCAS be removed from training and manuals and states that he is, “Jedi
mind tricking regulators.”
o FAA responded to the Committee’s request for “all communications between
Mark Forkner and FAA employees” with a set of unimportant emails that did not
contain disturbing ones sent earlier in the day.
The content and tone of communications by Boeing employees during the certification of the 737
MAX are disturbing. It remains unknown if the Committee has received all documents related to
Forkner, as requested. In addition, the documents received from FAA are redacted, obscuring
critical information. Unredacted versions were never provided despite having been requested.
The failure of DOT OGC to produce documents previously requested by the Committee only to
view them in media reporting and finally from FAA legislative affairs, suggests DOT OGC
intentionally withheld relevant information requested by the Committee.
41
MCAS Training and Human Factors
97
Maneuver Characteristics Augmentation System, Picture,
https://www.commerce.senate.gov/services/files/C97801F5-6664-43E3-B06A-B84529018E70
98
U.S. Department of Transportation, Federal Aviation Administration, Guidance for Conducting and Use of Flight
Standardization Board Evaluations, advisory circular 120-53B (Washington, DC, 2013),
https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_120-53B.pdf.
99
American Airlines Pilots Request Sim Trn prior to MAX return, June 7, 2019,
https://www.commerce.senate.gov/services/files/3C9CFBF6-CD8F-4669-BFB1-286E4F084ADA
100
Ibid.
42
According to Boeing, “MCAS flight control law was designed and certified for the 737
MAX to enhance the pitch stability of the airplane – so that it feels and flies like other 737s.”101
According to ASR1901 National Transportation Safety Board (NTSB) Report, multiple
activations of MCAS and the crew’s inability to recognize and effectively counter the activations
resulted in the two tragic crashes.102 There continues to be debate regarding the various factors
and the extent to which each contributed to the crashes, including lack of knowledge of MCAS,
sufficiency of pilot training, and level of pilot experience. Factors related to pilot actions are
known as Human Factors. The FAA has a Human Factors Division focused on Human Factors
issues. According to the FAA:
Human factors specialists in the FAA's Aviation Safety (AVS)
organization promote safety in the National Airspace by working to
reduce the occurrence and impact of human error in aviation systems
and improve human performance. These specialists have expertise in the
design and/or evaluation of aircraft systems, maintenance, operations,
procedures, pilot performance, associated FAA policy, and guidance.
They develop regulations, guidance, and procedures that support the
certification, production approval, and continued airworthiness of
aircraft; and certification of pilots, mechanics, and others in safety-
related positions.103
On May 2, 2019, Boeing representatives provided a briefing to Committee majority staff
in which they presented a clear opinion that the crashes were largely due to pilot inexperience.
The representatives minimized the significance of MCAS and stated the crashes would likely
never have happened with U.S. - trained pilots. Boeing representatives largely attributed the two
MAX crashes to human factors. An example of a human factor is the pilot response time to
identify and correct a runaway stabilizer problem. Boeing assumes a reaction time of four
seconds for a pilot to identify and begin correcting a runaway stabilizer problem. The 737 MAX
Flight Control System Joint Authorities Technical Review (JATR) published in October 2019
includes a review of this assumption as one of its recommendations.104 Boeing considers this
maneuver a memory item and assumes a pilot can recognize and act upon the situation from
memory alone in four seconds.
101
Boeing, “737 MAX Software Update,” https://www.boeing.com/commercial/737max/737-max-software-
updates.page#:~:text=The%20Maneuvering%20Characteristics%20Augmentation%20System,and%20flies%20like
%20other%20737s.
102
National Transportation Safety Board, Safety Recommendation Report: Assumptions Used in the Safety
Assessment Process and the Effects of Multiple Alerts and Indications on Pilot Performance, ASR-19-01
(Washington, DC, 2019), https://www.commerce.senate.gov/services/files/D5F47FAD-8DC6-479D-A53E-
B727E80603BC
103
U.S. Department of Transportation, Federal Aviation Administration, “Human Factors in Aviation Safety
(AVS),” last modified August 10, 2020, https://www.faa.gov/aircraft/air_cert/design_approvals/human_factors/.
104
Joint Authorities Technical Review, Boeing 737 MAX Flight Control System: Observations, Findings, and
Recommendations (Washington, DC, 2019),
https://www.faa.gov/news/media/attachments/Final_JATR_Submittal_to_FAA_Oct_2019.pdf.
43
737 MAX Recertification Testing
105
The runaway stabilizer procedure includes holding the control column firmly, disengaging the autopilot and auto
throttles (if engaged), setting the stab trim cutout switches to cutout, and trimming the airplane manually.
106
QRC Sim Testing – Runaway Stab Trim, August 7, 2019,
https://www.commerce.senate.gov/services/files/3BBE2CD5-AE41-4048-9C50-DC7B59D644CB
107
Ibid.
44
The account of this test and its results were corroborated during an FAA staff interview
as part of the Committee’s investigation. The FAA employee interviewed was aware of the
whistleblower’s ad hoc testing and the official testing event. During the interview, the employee
added he/she knew the whistleblower, and while the test was ad hoc, he/she respected the
whistleblower and believed his/her claims were credible. The employee also independently
confirmed the details and result of the test involving the ACO and AEG test pilots. When
Committee investigators asked a second FAA employee about the official test and disparate
results in a subsequent staff interview, DOT General Counsel objected and would not allow the
employee to answer, citing the link to ongoing 737 MAX recertification efforts. Committee staff
appealed and articulated the importance of oversight and the apparent misconduct the
investigation had revealed. DOT counsel did not permit the employee to answer. It was the
Committee’s understanding that this second employee being interviewed was, in fact, the AEG
test pilot who participated in the official test. DOT OGC provided no additional explanation as
to why the second employee was not permitted to answer the same questions as the first
employee. The time difference between interviewing the two employees was only a few weeks.
Based on corroborated whistleblower information and testimony during interviews of
FAA staff, the Committee concludes FAA and Boeing officials involved in the conduct of this
test had established a pre-determined outcome to reaffirm a long-held human factor assumption
related to pilot reaction time to a runaway stabilizer. Boeing officials inappropriately coached
test pilots in the MCAS simulator testing contrary to testing protocol. This test took place over a
year after the second 737 MAX crash and during recertification efforts. It appears, in this
instance, FAA and Boeing were attempting to cover up important information that may have
contributed to the 737 MAX tragedies.
Brian Rochester is the Division Manager for the Regulatory Standards Training Division
at the Mike Monroney Aeronautical Center FAA Training Academy in Oklahoma City,
Oklahoma. Mr. Rochester has worked for the DOT for approximately ten years, eight of which
have been in the FAA. He began his career in aviation in the United States Air Force as an
Aircraft Structural Repair Technician and in Aviation Flight Operations Resource Management.
His experience spans over twenty-nine years. In addition to undergraduate and graduate degrees
in Professional Aeronautics and Aeronautical Science and Safety, he holds a Doctor of Education
in Aviation and Space Studies. Mr. Rochester consented to be identified in this report.
Mr. Rochester made disclosures to the Committee about the effectiveness of FAA
training, including inefficiencies and waste. Specifically, Rochester described a disconnect
between training development, delivery, and accountability for training outcomes in FAA Flight
Standards. According to Rochester, Flight Standards often develops training based on their
independent assessment without consulting or receiving input from experts. The training is then
provided to the academy for delivery. The result, in Rochester’s opinion, is a deficient training
curriculum and improperly trained employees. Rochester contends this training deficiency
extends to safety oversight and aircraft certification.
45
On April 1, 2019, Mr. Rochester accepted an invitation to participate in a DOT OIG
review related to the 737 MAX crashes. Mr. Rochester told Committee investigators he looked
forward to the opportunity to participate, as he has long held concerns related to training
deficiencies in the FAA, including aircraft certification. Mr. Rochester further advised that his
concerns were well known by management as he had been vocal about them, and the Flight
Program 2014 Investigation highlighted in the improper training section of this report. Later the
same day, Mr. Rochester was advised by the Director, Enterprise Operations, and Aircraft
Certification Service that his input was not needed for the IG audit. Rochester questioned the
change but was ultimately not permitted to participate in the audit. Rochester contends his role
as the Division Manager for Regulatory Standards should have included him in such an IG effort.
He believes he was excluded purposefully to shield the FAA from the criticism he would likely
have provided in an IG interview. It is Rochester’s understanding such behavior is in direct
conflict with the intent and purpose of an IG effort and may constitute unethical conduct by his
supervisor. Rochester advised that the conduct of management in the wake of the MAX
tragedies compelled him to make disclosures to the Committee. The Committee has referred Mr.
Rochester’s allegations to the DOT OIG for investigation.
In March 2020, Mr. Rochester contacted the Committee to share additional concerns
related to aircraft certification training. He described an FAA intent to remove aircraft
certification training from the FAA Academy and contract it to Embry-Riddle. Mr. Rochester
asserts this plan is wasteful and introduces a conflict of interest by having a private institution
provide inherently governmental training to FAA staff.
The Committee received numerous concerns about the Flight Standardization Board
(FSB). An FSB is responsible for determining requirements for pilot type ratings, development
of training objectives, recommendations to use in the approval process of an operators training
program, and to ensure initial flight crewmember competency. The FSB also conducts initial
training for FAA Inspectors and the manufacturers’ pilots. An FSB is typically comprised of a
chairperson from the FAA Aircraft Evaluation Division, FAA operations Inspectors, FAA Office
of Safety Standards representatives, and technical advisers from other FAA offices.108
Committee staff interviewed two FAA employees with direct knowledge of the conduct
of the 737 MAX Flight Standardization Board. They were also familiar with allegations made
by whistleblowers and concerns raised by the Committee related to the Gulfstream VII FSB.
The employees asserted that the 737 MAX FSB was conducted professionally and diligently.
They were unaware of any pressure from FAA management to influence the proposed training
requirements or general outcome of the FSB and subsequent certification of the 737 MAX
aircraft. They acknowledged the existence of the Maneuvering Characteristics Augmentation
System (MCAS) early in the evaluation and indicated the FSB removed it from consideration at
U.S. Department of Transportation, Federal Aviation Administration, “Flight Standardization Board (FSB),” last
108
46
the request of Boeing Chief Technical Pilot Mark Forkner. One of the employees indicated that
FSB Chairperson Stacy Klein received technical briefings related to this request. The FAA did
not make Ms. Klein available to the Committee for an interview, despite an initial request almost
a year ago.
Finding: During 737 MAX recertification testing, a Boeing employee inappropriately
influenced FAA human factor simulator testing of pilot reaction times involving a
Maneuvering Characteristics Augmentation System (MCAS) failure.
Finding: FAA Aircraft Certification Office (ACO) test pilots were complicit in skewing human
factor simulator testing to support erroneous pilot reaction time to runaway stabilizer
assumptions by Boeing.
Finding: The Department of Transportation’s Office of General Counsel (DOT OGC) failed to
produce relevant documents requested by Chairman Wicker as required by the U.S.
Constitution, Article 1.
Finding: The DOT OGC improperly redacted information in produced documents, hindering
the Committee’s oversight investigation.
Finding: FAA senior leaders may have obstructed a Department of Transportation Office of
Inspector General (DOT OIG) review of the 737 MAX crashes.
The FAA uses Voluntary Safety Reporting Programs (VSRP) to provide regulators with
important and useful safety data, while resolving non-compliance without enforcement action as
much as possible.109 In 2015, the FAA adopted a “Compliance Philosophy,” which relies upon
the self-disclosure of errors and focuses on ensuring compliance with regulations instead of
immediately taking enforcement actions.110 This philosophy allows the FAA to gather
significant amounts of safety data from the aviation industry, which enables the FAA to track
and identify safety trends. While compliance is a goal in this new philosophy, the FAA maintains
that enforcement actions are still a tool to achieve safety goals. Among key qualifications when
evaluating voluntary disclosures is that the “apparent violation was inadvertent.”111
The Aviation Safety Action Program (ASAP) is one of these voluntary reporting
programs and is often used by airline pilots. According to the FAA, “because of its capacity to
provide early identification of needed safety improvements, an ASAP event offers significant
109
U.S. Department of Transportation, Federal Aviation Administration, “Fact Sheet—Aviation Voluntary
Reporting Programs,” April 12, 2016, https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=20214.
110
U.S. Department of Transportation, Federal Aviation Administration, Compliance Program and Airman Rights
(Washington, DC, 2020), https://www.faa.gov/about/initiatives/cp/media/CP_Brochure.pdf.
111
U.S. Department of Transportation, Federal Aviation Administration, Voluntary Disclosure Reporting Program,
advisory circular 00-58B (Washington, DC, 2009),
https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_00-58B.pdf.
47
potential for incident and accident avoidance.”112 All ASAP reports are reviewed by an Event
Review Committee (ERC) consisting of operator representatives, FAA officials, and a third
party, usually a labor union member representative. The ERC must reach a unanimous decision
on the disposition of ASAP reports, and if it does not, the FAA official on the ERC decides how
the event will be resolved.113
ASAP allows pilots to report errors without receiving disciplinary enforcement actions
when acceptance criteria are met and the reports are accepted by the ERC. The criteria includes
the reported error not being related to criminal activity, substance abuse, controlled substances,
alcohol, or intentional falsification. ASAP reports may also not be accepted in the cases of
intentional disregard for safety, according to FAA guidance.114
Multiple FAA whistleblowers have contacted the Committee with allegations of
widespread abuse of the ASAP system, often supported by FAA managers. These whistleblowers
allege that pilots often submit ASAP reports about intentional actions they knew violated FAA
regulations but carried out anyway. Whistleblowers say these events should not be accepted into
ASAP because they are not inadvertent, and these pilots should not be shielded from corrective
action. Whistleblowers allege that FAA officials, including senior managers, are aware of these
abuses, but often refuse to hold offending parties accountable to keep relations with the carriers
favorable.
Improper Repairs
112
U.S. Department of Transportation, Federal Aviation Administration, Designation of Aviation Safety Action
Program (ASAP) Information as Protected from Public Disclosure under 14 CFR Part 193, order 8000.82
(Washington, DC, 2003), https://www.faa.gov/documentLibrary/media/Order/Order_8000_82.pdf.
113
U.S. Department of Transportation, Federal Aviation Administration, Aviation Safety Action Program (ASAP),
advisory circular 120-66B (Washington, DC, 2002),
https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC120-66B.pdf.
114
U.S. Department of Transportation, Federal Aviation Administration, Volume 11 Flight Standards Programs:
Chapter 2 Voluntary Safety Programs, Section 1 Safety Assurance System: Aviation Safety Action Program, order
8900.1 CHG 0 (Washington, DC, 2014),
https://fsims.faa.gov/wdocs/8900.1/v11%20afs%20programs/chapter%2002/11_002_001.pdf.
48
further to ensure that it was within established tolerances before clearing the aircraft for take-off.
The whistleblower immediately contacted the FAA Principle Maintenance Inspector (PMI) and
advised of the situation. Before the flight was cleared, the maintenance technician continued
research; however, the aircraft continued on with departing for Honolulu. Upon arrival, the
damage was inspected and found to be within serviceable limits. The pilot later submitted an
ASAP report concerning the incident, which was accepted. As a result, no corrective action or
enforcement was initiated. While the flight arrived safely and the damage was within limits, the
incident was still an intentional disregard for safety and abuse of the ASAP program.
The whistleblower immediately recommended an enforcement action be initiated against
the airline, but was overruled by the Principle Maintenance Inspector (PMI). The whistleblower
appealed to his/her FAA management about the improper handling of this event and was told to
let the complaint go. He/she chose to elevate his/her concerns, which he/she believes triggered an
FAA Management Inquiry into this and other concerns he/she had raised previously. The
management inquiry, completed over twenty months after the incident, substantiated the facts of
the case but found that the decision not to pursue legal action was warranted largely because the
ASAP report had been accepted into the program and the airline had agreed to provide
counseling to the pilot in question. This management action clearly undermined the ASI and is
not compliant with the ASAP agreement or in the spirit of aviation safety.
In October 2017, while conducting a ground inspection of an American Airlines DC9-82
aircraft, the same whistleblower discovered three repaired dents on the right hand inboard
leading edge slats. The dents had been repaired with a black compound which had deteriorated
at the corners. Upon inspection, the whistleblower found there was no logbook entry related to
this repair as required. He/she inquired further with the operator and was unable to find any
documentation of the repair. During the investigations, the plane continued in revenue service
for five days. Finally, the plane was ferried to Tulsa, Oklahoma, for repair. The leading edge
slat was removed and replaced. The removed part was discarded and therefore not available for
further evaluation and investigation. The whistleblower alleges the operator had performed an
unauthorized and undocumented repair and upon confirmation intentionally discarded the part in
question. The whistleblower was not supported by his manager in initiating an enforcement
action. He/she had discovered an undocumented repair to a critical component which the carrier
ignored and chose to operate in revenue service exhibiting a blatant disregard for safety. Again,
the whistleblower’s manager did not support any compliance or enforcement action and was
irritated by his/her persistence.
In another incident while on an en-route flight inspection, the same whistleblower
discovered an open discrepancy in the aircraft log book related to the auto-throttle on a Boeing
737 immediately prior to takeoff. The pilot in command called maintenance, who arrived and
quickly signed off the log book as resolved. However, the technician did not complete the
required test procedure to correct the issue as he signed off in the log book. The whistleblower
challenged the technician on not completing the required test procedure. The technician asserted
he did not need to, as it was just a light. However, the technician signed off indicating he had
done the complete procedure, which eliminates other possible causes of a malfunctioned light.
49
The technician, even after being informed by the whistleblower about the incomplete procedure,
refused to correct the erroneous sign off. The following day, the whistleblower learned the
technician had submitted the incident to ASAP and it was accepted. Given the intentional nature
of the incident, the whistleblower alleges it should have been excluded.
Following this event, the whistleblower was threatened by his management saying his
“life was going to be hard” and other similar innuendo. The whistleblower believes this is due to
his commitment to adhere to regulations and diligently conduct oversight in the interest of safety.
He/she further states that holding the carrier compliant often results in complaints to his
management and against him/her personally for doing his/her job.
The same whistleblower reported that the manager in charge of the ASAP program in his
office was overheard saying that they would only deny an ASAP submission if it resulted in
“murder.” He/she claims this was also heard and understood by fellow ASIs and operator
employees. The whistleblower stated other FAA operator employees are afraid to speak out for
fear of retaliation. This sentiment, combined with the acceptance of events that should be
excluded, contradicts the purpose of the program by obscuring safety issues and trends as
opposed to identifying and analyzing them, according to the whistleblower.
On February 18, 2019, a particular day with inclement weather that brought down trees
and power lines throughout the region, the pilot in command of Southwest Airlines flight 2169
made three attempts to land at Bradley International Airport in Connecticut despite wind shear
alerts in the cockpit.115 These attempts resulted in both wing tips striking the runway, damaging
the aircraft. FAA whistleblowers contend that attempting to land in a known wind shear
condition is a violation of the carrier’s internal guidance. After three attempts, the flight diverted
to a different airport and landed successfully in Rhode Island. This event was submitted to and
accepted into ASAP. ASAP acceptance guidance requires that errors be inadvertent, but
whistleblowers contend that this event was far from inadvertent.
115
Kenneth R. Gosselin, “A Southwest Plane Scraped the Runway While Trying To Land at Bradley during High
Winds; Feds Want To Know What Happened,” Hartford Courant, February 26, 2019,
https://www.courant.com/business/hc-biz-southwest-airlines-bradley-rough-weather-20190226-
r5pe6cchf5eylc6edtmx3z25ki-story.html.
116
Aviation Safety Network, “ASN Wikibase Occurrence #219098,” last modified December 8, 2020,
https://aviation-safety.net/wikibase/wiki.php?id=219098.
50
have gone around for a second attempt. As a result, the plane touched down too far down the
runway.
Additionally, FAA whistleblowers state that the pilots attempted to veer the plane off to
the side before hitting the EMAS. The plane continued sliding forward, but FAA whistleblowers
state that if the maneuver had succeeded, the results could have been tragic. Committee staff
have reviewed investigative documentation corroborating these claims. Again, FAA
whistleblowers contend that the incident should not have been accepted into ASAP because the
pilots in question knowingly disregarded federal regulations, which whistleblowers allege is
evidenced by cockpit recordings. The incident was accepted into ASAP, and as a result the pilots
were not initially made available to FAA investigators for interview. Whistleblowers with direct
knowledge indicate the carrier did require the pilots involved in the incident to receive internal
remedial training. According to multiple whistleblowers, one of the pilots failed the remedial
training the first time and passed on the second attempt. The FAA had no input or oversight of
the training and never required FAA supervised 44709 check rides. A National Transportation
Safety Board (NTSB) investigation into the incident is ongoing.
Patrick Minnehan has been with the FAA as an ASI for thirteen years, and twelve years
as an ASAP Manager. Before joining the FAA, Inspector Minnehan spent thirty years as an
American Airlines Line Pilot check airman, Aircrew Program Designee (APD), Chief Pilot at
DFW, USAF Capt. Instructor Pilot, Standardization and Evaluation Pilot, and Instructor Aircraft
Commander. Inspector Minnehan has approximately 20,000 combined flight hours. Inspector
Minnehan stated that in at least two instances, when a Southwest Airlines flight lost electric
stabilizer trim controls for an undetermined reason, the pilots chose to continue on to their
destination instead of turning back. Minnehan and several other whistleblowers stated that
turning back would have been a far safer course of action. These incidents were accepted into
ASAP. It is unknown if these incidents were submitted to NTSB as required.117
In a separate case in January 2020 involving Southwest Airlines, FAA whistleblowers
reported that during takeoff, a first officer reported a malfunction in the flight elevator, a core
component of a plane’s flight control. The pilot in command elected to continue on with their
flight instead of turning back, and encountered the same malfunction en-route, and upon arrival
at their destination. Instead of reporting the issue to maintenance, they again chose to fly another
leg, encountering the issue again during takeoff, en-route and on arrival. Upon arrival at their
second destination, they reported the issue, and the plane was grounded for at least four days for
maintenance, according to FAA whistleblowers.
Upon inspection, it was found that a flight control cable was misrouted. As a result, the
cable had been rubbing against the aircraft’s internal structure. This rubbing damaged both the
117
U.S. Department of Transportation, Federal Aviation Administration, Aircraft Accident and Incident Notification,
Investigation, and Reporting, order 8020.11D (Washington, DC, 2018),
https://www.faa.gov/documentlibrary/media/order/faa_order_8020.11d.pdf.
51
cable and internal structure while causing the flight controls to bind. Flying under these
conditions can be challenging and could lead to loss of control.118 Despite the intentional nature
of the event, Southwest Airlines requested that it be accepted into the ASAP program and that
the pilot be shielded from any potential enforcement action. According to Inspector Minnehan
the flight crew involved violated the following CFRs: §91.13, §91.213, §91.403, §91.405,
§121.303, §121.315, §121.363 and §121.563.
This incident was not reported to the NTSB immediately as required. Only after repeated
inquiries by Mr. Minnehan, the ASAP manager at the time, was the incident finally reported.
According to 49 CFR § 830.5, flight control malfunctions and incidents must be reported to the
NTSB immediately.119 The incident was submitted to ASAP on January 30, 2020, and excluded
on February 13, 2020. Inspector Minnehan excluded the event but Southwest kept the case open.
FAA management and Southwest continued to pressure Inspector Minnehan to accept the event;
however, he refused. Only after Mr. Minnehan’s departure as the ASAP manager on March 15,
2020, did the new ASAP manager accept the event into ASAP in April 2020. The event was
reported to the NTSB on February 14, 2020, two weeks after the event. In a February 18, 2020,
email, a Southwest Airlines Safety employee explained to the Southwest Director of Safety
Management Systems that the regulation requiring immediate reporting of flight control
malfunctions is “very gray” and they had “spoken to the NTSB on Friday and they confirmed
that this was not reportable.”
Further investigation revealed the misrouted flight control cable was the result of a
previous improperly completed repair to the elevator feel bearing. The previous repair required
the removal of flight control cables which were subsequently not replaced in accordance with
prescribed procedure, resulting in a misrouting of the cables. This was discovered upon
inspection following the pilot ASAP submission due to the binding flight control.
Despite the repair having been completed while intentionally disregarding the proper
procedure, a maintenance ASAP was submitted and accepted for the initial repair. Review of the
documents revealed that the pilot ASAP program improperly cited the elevator feel bearing as
the cause of the flight control malfunctions experienced by the pilots. In fact, the cause was the
misrouted cable, not the elevator feel bearing which had been replaced. Extensive investigation
was required to determine this error due to redactions of routine maintenance documents and
aircraft log pages by the Southwest Airlines pilot ASAP program. The redacted documents
created an appearance of the initial elevator feel bearing repair as the cause of the flight control
malfunctions reported in the pilot ASAP. No mention of the misrouted flight control cable was
ever disclosed or included in any of the pilot ASAP submissions. Inspector Minnehan asserts
these actions were intentional and misinformed the ASAP program to hide the improper repair
which was the true cause of the malfunction.
118
U.S. Department of Transportation, Federal Aviation Administration, “Chapter 17: Emergency Procedures,”
Airplane Flying Handbook, (Washington, DC, 2016)
https://www.faa.gov/regulations_policies/handbooks_manuals/aviation/airplane_handbook/media/19_afh_ch17.pdf.
119
Cornell Law School, Legal Information Institute, “49 CFR § 830.5 – Immediate Notification,”
https://www.law.cornell.edu/cfr/text/49/830.5#.
52
Inspector Minnehan reports that while he was the ASAP manager, on average 100-150 events
were submitted to ASAP each week, with over 65,000 events being submitted since 2004.
According to Inspector Minnehan and multiple whistleblowers, an increasing number of these
events are accepted despite disqualifying criteria such as intentional disregard for safety. These
practices contradict the purpose and spirit of the program by hiding risks instead of identifying
and mitigating them properly.
As a result of the two 737 MAX tragedies, many in the general public have become
aware of the importance of the Angle of Attack (AoA) sensor and related systems. The AoA
measures and reports the pitch of the nose of the airplane to flight systems. While the Boeing
737NG does not have the Maneuvering Characteristics Augmentation System (MCAS)
implicated in the two 737 MAX crashes, it utilizes AoA to inform other vital flight systems.120
Recently, a first officer for Southwest Airlines conducted an external preflight inspection of a
737NG he was about to fly. While doing so, he pointed out foreign objects on the airplane to the
captain. The captain acknowledged it and took no action. The flight departed for Fort
Lauderdale and arrived safely. The pilot did not notate the foreign objects in the aircraft log-
book or advise anyone of them as required.121
According to then-FAA ASAP Manager Patrick Minnehan, the same crew flew an
additional leg to San Juan, Puerto Rico, and arrived safely. Again, no log entry or notification
was made to anyone. That same day, a subsequent flight crew conducted its preflight inspection
and were alerted to the foreign objects. After additional inspection, the foreign objects were
determined to be duct tape on both AoA. This crew made the required log book entries.
Committee staff reviewed pictures and were told by FAA whistleblowers that the sensors had
been taped in place and could have caused erroneous information to flight systems resulting in
unsafe flight. FAA whistleblowers state that the sensors were taped in place for calibration
purposes, but maintenance personnel neglected to remove the tape afterwards. Fortunately, the
sensors were able to break free of the tape during initial takeoff. According to FAA
whistleblowers, had they not, the result could have been catastrophic. Below is a picture of the
taped AoA described above.
120
Komite Nasional Keselamatan Transportasi, Republic of Indonesia, Aircraft Accident Investigation Report,
KNKT.18.10.35.04 (KNKT: Republic of Indonesia, 2019),
http://knkt.dephub.go.id/knkt/ntsc_aviation/baru/2018%20-%20035%20-%20PK-LQP%20Final%20Report.pdf.
121
Cornell Law School, Legal Information Institute, “14 CFR 91.213 – Inoperative Instruments and Equipment,”
https://www.law.cornell.edu/cfr/text/14/91.213.
53
Inspector Minnehan advised that the carrier initially did not allow the crew to be
interviewed. After additional discussion, the carrier reportedly agreed to allow the crew to be
interviewed only if the events were accepted into ASAP unconditionally before the interviews
took place. Inspector Minnehan refused this proposal, and as a result the crew was never
interviewed by FAA as part of the Emergency Response Team (ERT). The event remained open
for several weeks despite having been excluded. Subsequently, following the departure of
Inspector Minnehan as ASAP manager, newly assigned FAA personnel conducted a new review
of the event and accepted it based on the finding of no CFR violations despite the record clearly
identifying numerous CFR violations.122
122
Cornell Law School, Legal Information Institute, “14 CFR 13.1 – Reports of Violations,”
https://www.law.cornell.edu/cfr/text/14/13.1.
54
Inspector Minnehan left his position as ASAP manager due to a promotion opportunity
and a lack of management support in properly managing the ASAP program in accordance with
guidance and favoring the carrier. This conduct over several years resulted in a contentious and
increasingly hostile environment. In March 2020, Inspector Minnehan promoted to Assistant
Principal Operations Inspector (POI) for the Southwest Certificate Management Office (CMO).
According to Inspector Minnehan, the voluntary disclosure programs are a valuable tool
but are only as good as the information input which relies on full disclosure and cooperative
transparency. In his experience, this is not always the case. As a result, these programs may
provide the Safety Management System (SMS) with incomplete information regarding events
which might benefit from a root cause analysis and appropriate corrective actions.
Unfortunately, when these principles are pursued the result is retaliation and personal character
assassination of the ASI involved.
The Committee spoke to Mr. Jose Portela in April of 2020. Mr. Portela is currently an
Aviation Safety Inspector at the FAA Southwest Airlines CMO. He assists with the ASAP
program and worked for former ASAP Manager Patrick Minnehan. Prior to working for the
FAA, Inspector Portela worked for U.S. Airways for thirty-two years, including as a check
airman. He was awarded the Superior Airmanship Plaque, the highest award given by the
Airline Pilots Association (ALPA) for “demonstrating extraordinary flying skills and
professionalism in the face of adversity, for safely recovering an aircraft with severe flight
control problems, exemplifying the best of what a pilot can offer to those who have placed their
lives in his hands.”123 Inspector Portela is a highly decorated veteran of forty-three years (active,
reserve, and guard) in the United States Air Force (USAF), achieving the rank of Brigadier
General. He has over 20,000 combined flight hours. Inspector Portela provided independent
corroboration for several ASAP events described by Inspector Minnehan. Mr. Portela also
supports the criticism and concerns shared by Inspector Minnehan.
The FAA has and continues to promote the value of voluntary disclosure programs,
including ASAP supported by the “data-driven” and risk-based safety and inspection philosophy
adopted by the FAA and routinely briefed to Congress and the public.124 In 2012, the
Department of Transportation Office of Inspector General (DOT OIG) and FAA investigated a
hotline complaint H12E047CC, in which an FAA employee alleged retaliation for cooperating
with a DOT OIG audit. Office of Audit and Evaluation (AAE) found that the whistleblower had,
in fact, been retaliated against for providing complete and candid information requested by the
DOT OIG. Management took exception to the thoroughness of the information he/she provided,
123
United States Air Force, Brigadier General Jose M. Portela, July 31, 2004, https://www.af.mil/About-
Us/Biographies/Display/Article/559890/brigadier-general-jose-m-portela/
124
U.S. Congress, Senate, Committee on Commerce, Science, and Transportation, Examining the Federal Aviation
Administration’s Oversight of Aircraft Certification: Hearing Before the Committee on Commerce, Science, and
Transportation, 116th Cong., 2d sess., June 17, 2020 (prepared statement of Stephen M. Dickson, Administrator,
Federal Aviation Administration), https://www.commerce.senate.gov/services/files/2CD68098-DD6D-46FA-BD49-
2796F03C1B60.
55
as it was contrary to what the FAA had represented to Congress and the public. The
whistleblower disclosed and the DOT OIG confirmed that voluntary data, including ASAP and
the Flight Operational Quality Assurance (FOQUA) data, were collected. However, the FAA did
not permit analysis due to the sensitive nature of the information. The whistleblower’s
disclosures revealed that because the information was not accessible it was not part of any
analysis conducted by the FAA. The whistleblower provided documented requests for access to
the information for the purpose of safety analysis and was repeatedly denied.
In 2009, the Department of Transportation’s Office of Inspector General released an audit
report that found that the FAA’s ineffective implementation and inadequate guidance have
allowed inconsistent use and potential abuse of ASAP.125 Four of the eight recommendations
remain open, including ones to exclude accidents from the program, to clarify that ASAP is not
an amnesty program, to require inspectors to examine repetitive reports if there are safety
concerns to ensure corrective action is taken, and to require that FAA ERC members receive
ASAP reports in a timely manner.
ASAP can be a valuable tool that allows the FAA to gather significant amounts of safety
data that is used to help the FAA and the aviation industry identify possible safety concerns or
trends that should be addressed. However, ASAP should be managed and enforced in
accordance with relevant orders, regulations, and agreements. The Committee has spoken to
dozens of FAA inspectors, managers, union representatives, and pilots about the effectiveness of
ASAP. The common theme from these conversations is that ASAP is being abused by the
participants to avoid enforcement actions, thereby obscuring potentially valuable safety
information. Whistleblowers contend that this is a grave safety issue and must be addressed by
senior officials in the FAA.
Compliance Philosophy
In 2015, the FAA adopted the “Compliance Philosophy,” which relies upon the self-
disclosure of errors and focuses on ensuring compliance with regulations instead of having the
agency immediately take enforcement actions.126 This new philosophy allows the FAA to gather
significant amounts of safety data from the aviation industry, which enables the FAA to track
and identify safety trends.
Interviews with both frontline employees and managers reveal an internal divide with
respect to opinions about the efficacy of the FAA’s compliance philosophy. Some frontline
employees believe the agency ignores laws and regulations, to the detriment of public safety in
order to accommodate the compliance philosophy. Some managers, on the other hand, often feel
that frontline employees are overly aggressive in their application of laws and regulations, as
125
U.S. Department of Transportation, Office of the Secretary of Transportation, Office of Inspector General, FAA
Is Not Realizing the Full Benefits of the Aviation Safety Action Program, AV-2009-057 (Washington, DC, 2009),
https://www.oig.dot.gov/sites/default/files/WEB_FILE_ASAP_Final_Report_May_14_ISSUED.pdf.
126
U.S. Department of Transportation, Federal Aviation Administration, Compliance Program and Airman Rights
(Washington, DC, 2020), https://www.faa.gov/about/initiatives/cp/media/CP_Brochure.pdf.
56
well as excessively confrontational with the carrier. This friction leads to distrust,
miscommunication, and unnecessary escalation of minor issues.
Multiple senior officials interviewed by the Committee indicated that ASIs have a
significant amount of discretion related to compliance. They refer to these examples of
discretion as “technical non-compliance.” FAA officials explained that these are instances
where a certificate holder may not be compliant with regulations, but ASIs are encouraged to
apply a risk matrix to evaluate whether a risk exists. Two managers interviewed confirmed that
this process is not codified in policy or recognized by regulation, but is encouraged as part of the
compliance philosophy. ASIs told Committee staff that they have no latitude on this subject.
They stated that if an ASI did what these managers suggest is allowable, they could be found to
be derelict in their duties.127
During Committee interviews of FAA employees, questions were posed regarding the
compliance philosophy. As discussed above, ASAP allows operator employees to report errors
without receiving enforcement actions if the report meets certain parameters, such as being
unrelated to criminal activity, substance abuse, controlled substances, alcohol, or intentional
falsification. One manager interviewed seemed knowledgeable about the program and was able
to identify the factors that disqualify an event from ASAP, including intentional acts. However,
when asked about a flight control malfunction caused by the misrouted elevator cables described
in the flight control malfunction section of the report, the manager assured the Committee it was
handled properly. Committee staff presented the manager with the details of the case and the
manager agreed, based on what was presented, that it should not have been accepted. Committee
staff shared additional detail about the preceding maintenance event that the agency also
accepted into ASAP. The senior manager, when presented with the specifics of the case, agreed
that, as described, the FAA should have also excluded this maintenance event. Committee
investigators asked two FAA employees if operators are required to report flight control
malfunctions to the NTSB. The managers were not aware of this requirement. In fact, CFR128
requires flight control malfunctions to be reported to the NTSB immediately by the operator.129
The manager also had no explanation when Committee staff shared information related to
additional flight control malfunctions that were also accepted into ASAP. It is unclear how
many, if any, of these other events were reported to the NTSB. Indeed, it took Inspector
Minnehan several weeks and multiple inquiries about reporting requirements before the operator
finally reported the event to the NTSB. The interviews of these managers raise concerns about
their knowledge and ability to lead a highly technical regulatory organization. The attitude and
tone exhibited regarding identified whistleblowers was disturbing.
127
U.S. Department of Transportation, Federal Aviation Administration, FAA Compliance and Enforcement
Program, order 21503C (Washington, DC, 2018),
https://www.faa.gov/documentLibrary/media/Order/FAA_Order_2150.3C.pdf.
128
Cornell Law School, Legal Information Institute, “49 CFR 830.5 – Immediate Notification,”
https://www.law.cornell.edu/cfr/text/49/830.5.
129
U.S. Department of Transportation, Federal Aviation Administration, Aircraft Accident and Incident Notification,
Investigation, and Reporting, order 8020.11D (Washington, DC, 2018),
https://www.faa.gov/documentlibrary/media/order/faa_order_8020.11d.pdf.
57
The FAA’s Relationship with Regulated Entities
Frontline inspectors and managers at the FAA report that the agency sometimes struggles
to present a unified face to entities that it regulates. Several carriers and operators engaged by the
Committee confirmed this perception. In fact, employees from several airlines claimed ASAP
was “sold” to them as a “get out of jail free card.” Every whistleblower the Committee engaged
on this topic concurred with this statement. The friction between frontline employees and FAA
managers described above contributes to this issue. Whistleblowers stated that representatives of
airlines routinely contact FAA managers when they disagree with the decisions of frontline
inspectors tasked with regulatory oversight. FAA officials confirmed this fact during interviews.
For example, whistleblowers alleged that acting Administrator Elwell and Southwest Airlines
senior executives have close personal relationships and communicate frequently. One FAA
senior manager asserted that Southwest Airlines Chief Operating Officer Mike Van de Van
referenced the relationship in a meeting with representatives from the FAA and the carrier.
Whistleblowers contend that this type of conduct is inappropriate and indicative of a relationship
between some officials at the FAA and carriers that lacks integrity. A senior official at Southwest
Airlines also told the Committee that the perceived relationship Southwest senior executives and
Mr. Elwell is well known in the company and has been invoked periodically to get favorable
treatment from the local FAA CMO. The committee observed systemic FAA management
intervention with FAA Inspectors to favor Southwest Airlines in its review of related documents.
In a February 2020 Southwest Airlines Pilots Association letter, the organization cites its
relationship with the FAA Administrator and an apparent willingness to intervene in ASAP
specifically.130 Personal relationships between FAA employees and regulated industry officials
are not prohibited. However, the circumstances and perceptions supported by documented
communications reviewed by Committee investigators suggest numerous instances of potential
conflicts of interest at the very least.
Finding: Operators accept Aviation Safety Action Program (ASAP) events which do not meet
the requirements of the ASAP program, such as intentional acts and willful disregard for
safety.
Finding: FAA management is complicit in accepting ASAP events which are not eligible as
defined by program parameters.
Finding: Acceptance of intentional acts of forbidden ASAP events may obscure trends from
analysis while not holding employees accountable.
Finding: ASAP data was not effectively collected and analyzed by the FAA.
Finding: Commercial airlines and other operators appeal to FAA managers to influence the
Event Review Committee (ERC) acceptance decisions, thereby undermining the integrity and
value of the ASAP program.
Southwest Airlines Pilots Association, The DOT OIG Report on Safety – The Time for a New Mindset is Long
130
58
Finding: FAA has not consistently communicated its oversight and enforcement role,
especially with regard to voluntary reporting programs.
C. Atlas Airlines
Atlas Airlines is an air carrier operating under 14 CFR Part 121. Polar Air Cargo and
Southern Air are all independent air carriers who are required by regulation to operate under
their individual FAA certificates, but owned together by Atlas Air Worldwide Holdings.131 This
requirement ensures that certificate holders have sufficient training, maintenance, and operations
policies and procedures implemented to address their specific operations. These requirements
are defined and documented in Operations Specifications.132
According to their website, Atlas Air is the largest cargo carrier in the United States and
is known for transporting a significant amount of cargo for Amazon.133 A merger of Polar Air
Cargo, Southern Air, and Atlas Air commenced in 2016 but remains incomplete.134 The
CAVOK Group is a company playing an integral part in the merger. CAVOK Group employs a
retired FAA employee on staff in an executive position. This employee appears to have
previously retaliated against an FAA whistleblower while employed at the FAA, as discussed in
this section of this report.135
The Department of Transportation’s Office of the Inspector General in 2016 found that
the FAA was not well positioned to determine how often pilots have enough experience in air
carrier training or flying skills.136 As reported in a Miami Herald article on June 12, 2019, Atlas
Air executives were aware of training deficiencies and concerns about pilots as early as January
2017.137 After this acknowledgement of serious concerns regarding pilot proficiency, Atlas Air
131
U.S. Securities and Exchange Commission, Form 10-K: Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the Fiscal Year Ended December 31, 2012: Atlas Air Worldwide Holdings, Inc.,
https://www.sec.gov/Archives/edgar/data/1135185/000119312513054466/d450612d10k.htm.
132
U.S. Department of Transportation, Federal Aviation Administration, Volume 3 General Technical
Administration, Chapter 18 Operations Specifications, Section 3 Part A Operations Specifications—General,
89000.1 CHG 179 (Washington, DC, 2011),
https://fsims.faa.gov/WDocs/8900.1/V03%20Tech%20Admin/Chapter%2018/03_018_003_CHG_179A.htm.
133
Atlas Air, “About Us: History,” https://www.atlasair.com/about-us/history/.
134
Atlas Air/IBT, System Board of Adjustment, In the Matter of the Arbitration Between International Brotherhood
of Teamsters Airline Division, and Teamsters Local Union No. 1224 - and - Atlas Air, Inc. (August 2019),
http://www.atlasairworldwide.com/wp-content/uploads/2019/08/Atlas-IBT-Opinion.pdf.
135
Memorandum for Record, March 14, 2014, April 18, 2014,
https://www.commerce.senate.gov/services/files/621F43CC-9CFE-45AE-BA35-CD5EF9A60FC4
136
U.S. Department of Transportation, Office of the Secretary of Transportation, Office of Inspector General,
Enhanced FAA Oversight could Reduce Hazards Associated With Increased Use of Flight Deck Automation, AV-
2016-013 (Washington, DC, 2016),
https://www.oig.dot.gov/sites/default/files/FAA%20Flight%20Decek%20Automation_Final%20Report%5E1-7-
16.pdf.
137
Taylor Dolven, “Pilots at MIA’s Biggest Cargo Airline Warned Execs a Crash Was Coming. Then a Plane Went
Down,” Miami Herald, June 12, 2019, https://www.miamiherald.com/news/business/tourism-
cruises/article230569724.html
59
has been involved in numerous incidents, including a runway overrun in Japan in July 2017,138 a
near ground collision in Hong Kong in September 2017,139 hard landing with engine 4 hitting the
ground in Marana, Arizona, in December 2019, and an extremely hard landing in Portsmouth,
New Hampshire, in July 2018.140 The Portsmouth landing required significant structural repairs
and was a near total hull loss.
On February 23, 2019, Atlas Air Flight 3591 crashed into Trinity Bay near Houston,
Texas, killing all three crewmembers on board. On July 14, 2020, National Transportation Safety
Board (NTSB) released an abstract of their final report that states that the first officer had
fundamental weaknesses in his flying aptitude and stress response.141 The report found the first
officer on Flight 3591 had a long history of training performance difficulties and deliberately hid
those deficiencies from Atlas Air. The NTSB “determined that the probable cause of this
accident was the inappropriate response by the first officer as the pilot flying to an inadvertent
activation of the go-around mode, which led to his spatial disorientation and nose-down control
inputs that placed the airplane in a steep descent from which the crew did not recover.”142
The NTSB also stated that had the Federal Aviation Administration met the deadline and
complied with the requirements for implementing the pilot records database (PRD) as stated in
section 203 of the Airline Safety and Federal Aviation Administration Extension Act of 2010,143
the Pilot Record Database (PRD) would have provided hiring employers relevant information
about the first officer’s employment history and training performance deficiencies. 144 The NTSB
report noted that, “[also,] contributing to the accident was the Federal Aviation Administration’s
failure to implement the PRD in a sufficiently robust and timely manner.”145
In April 2020, investigative staff spoke with whistleblower Mr. Thomas Clemmons, an
FAA Aviation Safety Inspector (ASI) with eighteen years of experience in the FAA, including
four years as a team leader for the Certification Evaluation Program Office (CEPO). Inspector
Clemmons previously worked for several Part 121, 135, and 125 carriers, including positions as
Instructor Pilot, Check Airman, and Chief Pilot Director Operations. He is considered by the
138
Aviation Safety Network, Flight Safety Foundation, “ASN Wikibase Occurrence # 197257,” last modified
December 4, 2020, https://aviation-safety.net/wikibase/wiki.php?id=197257.
139
Aviation Safety Network, Flight Safety Foundation, “ASN Wikibase Occurrence # 199972,” last modified
December 3, 2020, https://aviation-safety.net/wikibase/wiki.php?id=199972.
140
Aviation Safety Network, Flight Safety Foundation, “Database, 2018,” last modified December 7, 2020,
https://aviation-safety.net/database/record.php?id=20180727-1.
141
National Transportation Safety Board, synopsis of Rapid Descent and Crash Into Water, Atlas Air Inc. Flight
3591, Boeing 767-375BCF, N1217A, Trinity Bay, Texas, July 14, 2020 (2020),
https://www.ntsb.gov/news/events/Documents/2020-DCA19MA086-BMG-abstract.pdf.
142
National Transportation Safety Board, Rapid Descent and Crash Into Water, Atlas Air Inc. Flight 3591, Boeing
767-375BCF, N1217A, Trinity Bay, Texas, July 14, 2020, NTSB/AAR-20/02 (Washington, DC, 2020),
https://www.ntsb.gov/investigations/AccidentReports/Reports/AAR2002.pdf.
143
Airline Safety and Federal Aviation Administration Extension Act of 2010, Public Law 111-216 (2010),
https://www.govinfo.gov/content/pkg/PLAW-111publ216/pdf/PLAW-111publ216.pdf.
144
“Pilot Records Database, Notice of Proposed Rulemaking” Federal Register 85, no. 61 (March 30, 2020): 17660,
https://www.govinfo.gov/content/pkg/FR-2020-03-30/pdf/2020-04751.pdf.
145
National Transportation Safety Board, synopsis of Rapid Descent and Crash Into Water, Atlas Air Inc. Flight
3591, Boeing 767-375BCF, N1217A, Trinity Bay, Texas, February 23, 2019 (2020),
https://www.ntsb.gov/news/events/Documents/2020-DCA19MA086-BMG-abstract.pdf.
60
FAA to be a Subject Matter Expert (SME) in training of flight crew members. In line station
operations he has approximately 12,000 total combined flight hours, and 10,000 as Pilot in
Command (PIC). Inspector Clemmons shared numerous disclosures with Committee staff
alleging violations of regulations undermining aviation safety and retaliation and misconduct by
FAA managers. Inspector Clemmons worked on the FAA’s National Certificate Holder
Evaluation Process (CHEP) for both Atlas Airlines and Polar Air Cargo in 2019. According to
the FAA a “national CHEP evaluates part 121 air carriers, part 145 repair stations, and part 135
certificate holders for regulatory compliance on a five-year schedule.”146 Inspector Clemmons
has participated in over twenty-five previous CHEP Inspections and as team leader for
approximately half of them. Inspector Clemmons stated that the findings for each evaluation for
Atlas, Polar, and Southern were the worst he had ever seen for any certificate holder.
During the Atlas Air inspection, Inspector Clemmons discovered that the Principle
Operations Inspector (POI) for the local Certificate Management Office (CMO) had authorized
Polar Air Cargo to transfer its pilots to the Atlas Airline’s training program to satisfy
requirements for pilot training in 2011.147 The CHEP team that Inspector Clemmons was
working on was unable to find any regulation or FAA guidance that provided such authority to
the POI.148 According to 14 CFR Part 121.401(a) (1) Training Program, each operator must
provide enough flight instructors and approved check airmen to conduct the flight training and
checks required under this part.149 Currently, CMO and Flight Standards management assert
Atlas and Polar Air are in compliance with following the FAA’s rules and regulations and
maintaining all documentation required by the FAA due to this memo granted by the POI in
2011.150 This memo appears to be an indirect conflict with 14 CFR 121.401(a). This deviation
also appears to perpetuate findings related to insufficient training and oversight of check airmen
and related activities cited in a 2017 DOT OIG report.151
In a memo152 on October 16th, 2019, the Assistant Manager for the FAA’s Certification
and Evaluation Program Office stated that federal regulations require that each certificate holder
shall provide its own flight instructors, simulator instructors, and approved check airmen to
146
U.S. Department of Transportation, Federal Aviation Administration, “Safety Analysis & Promotion Division
Certification and Evaluation Program Office,” last modified November 30, 2020,
https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/afx/afs/afs900/afs910/certeval/.
147
U.S. Securities and Exchange Commission, Form 10-K: Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the Fiscal Year Ended December 31, 2012: Atlas Air Worldwide Holdings, Inc.,
https://www.sec.gov/Archives/edgar/data/1135185/000119312513054466/d450612d10k.htm.
148
Atlas Air Polar, Crewmember Services Agreement, March 2, 2011,
https://www.commerce.senate.gov/services/files/5344EA59-BB8A-4F04-84DC-B2243786240A
149
Cornell Law School, Legal Information Institute, “14 CFR § 121.401 Training Program: General,”
https://www.law.cornell.edu/cfr/text/14/121.401.
150
Ibid.
151
U.S. Department of Transportation, Office of Inspector General, FAA Has Not Ensured All Check Pilots Meet
Training and Observation Requirements, AV2017050 (Washington, DC, 2017),
https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20Check%20Pilots%20Final%20Report%5E
5-31-17.pdf.
152
United States Department of Transportation, Federal Aviation Administration, Memorandum, October 16, 2019,
https://www.commerce.senate.gov/services/files/DE968235-5514-4751-A99A-0477D52BE323
61
conduct the required training and checking.153 Inspector Clemmons has continued to inquire
about the status of this finding and non-compliance while escalating the issue to FAA senior
management. He has not received a conclusive response to date. While elevating concerns, a
Senior FAA Manager at CMO told Inspector Clemmons’ supervisor that Inspector Clemmons
needed to “leave it alone.” Inspector Clemmons perceived this communication as a threat of
retaliation for doing his job correctly.
According to emails reviewed by the Committee, an official from AFS 280 stated in a
meeting, “we have been letting them operate outside the regulations since 2011, how are we
going to tell them they have to stop.”154 AFS 280 is the Air Transportation Division, Air Carrier
Training Systems and Voluntary Safety Reporting Programs (VSRP) Branch.155
Another FAA official stated to Committee staff that this issue was appealed to Office of
Safety Standards (AFS) 200 in October 2019. AFS 200 is responsible for managing, developing,
evaluating, operational policies and guidance for air carrier operations aspects of 14 CFR part
121, 63, and 65; while providing consistent and timely information to internal and external
stakeholders.156 After eight months, the matter was finally elevated to the Director level of the
FAA and received no decision. Finally, in July 2020, the matter was referred to the FAA Office
of General Counsel where it remains under consideration.
During staff interviews conducted by the Committee in July 2020, Committee staff asked
why an opinion had not been provided by FAA counsel over a year later. A senior flight
standards leader acknowledged the issue and advised it was being considered by AGC.
Committee staff reiterated this question again on August 25, 2020, to DOT general counsel and
have yet to receive a response. Inspector Clemmons indicated he has filed a complaint with the
OSC which was accepted and referred to the DOT OIG for investigation.
The Committee spoke to whistleblower Mr. Greg Schaper in May 2020. Inspector
Schaper is currently the Principle Operations Inspector (POI) for Air Transport International.
Inspector Schaper has been an Inspector in the FAA for thirteen years. While in the FAA, he has
worked as a General Aviation, ASI, and POI. More recently he served as an ASI and APOI for
Southern Air and as the POI for Atlas, Polar, and Southern for approximately three years. Prior
to the FAA, Inspector Schaper worked for Ameriflight for sixteen years as a line pilot, check
pilot, Base Chief Pilot and Embraer 120 Program manager. Inspector Schaper was removed
from his position as POI for Atlas, Polar, and Southern Air and involuntarily reassigned to Air
Transport International in 2020.
153
Cornell Law School, Legal Information Institute, “14 CFR § 121.401 Training Program: General,”
https://www.law.cornell.edu/cfr/text/14/121.401.
154
Email about Atlas and Polar Air Training Discussion, October 14, 2020,
https://www.commerce.senate.gov/services/files/ED61FC55-4BC8-4244-83B0-40A8D9EC07F0
155
U.S. Department of Transportation, Federal Aviation Administration, “Air Transportation Division: Air Carrier
Training Systems & Voluntary Safety Programs Branch,” last modified November 7, 2017,
https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/afx/afs/afs200/afs280/.
156
U.S. Department of Transportation, Federal Aviation Administration, “Part 121 AFS-220 Air Carrier Operations
Branch,”
https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/afx/afs/afs200/afs220/media/functions.pdf.
62
While serving nearly three years as POI, Inspector Schaper attempted to hold Atlas,
Polar, and Southern Air compliant with FAA regulations. While POI, he learned it is unheard of
to have one POI permanently assigned to three separate certificated operators. Regulations
specify a separate Principle Operations Inspector (POI), Principle Maintenance Inspector (PMI),
and Principle Avionics Inspector (PAI) for each certificated operation.157 As the POI, Inspector
Schaper managed the certification and surveillance activities for all three operators, and became
aware of the permission granted by a previous POI in 2011 permitting an operations deviation
for which he states there is no authority. During Inspector Schaper’s tenure as POI, he became
aware of this and other deficiencies related to training and certifications. He repeatedly raised
his concerns to management, who told him it was approved by Flight Standard’s management
and was, therefore, valid. Inspector Schaper indicated he believed these deficiencies in training
and other non-compliance created significant safety risks. Inspector Schaper asserts there was a
lack of management support to ensure operator compliance and that when he pushed back on the
operator he was circumvented by his management and told he was not a team player. Inspector
Schaper indicated he was told he needed to treat certificate holders as customers and use
discretion in compliance actions to help them be “successful.” According to Inspector Schaper,
the success of an operator is not part of an Inspector’s responsibility and should not be a
consideration while ensuring aviation safety compliance. He believes this currently is a
significant consideration of management in this particular Certificate Management Office
(CMO) and understands this to be the case in an increasing number of CMOs in the FAA, due to
senior management direction and intervention.
On December 24, 2019, approximately nine months after the Trinity Bay crash and at the
final stages of the failing Certificate Holder Evaluation Process (CHEP) inspection discussed
above, Inspector Schaper’s manager received allegations from the Vice President of Safety and
Compliance at Atlas Air Holdings that Inspector Schaper was unprofessional, did not
communicate with company team members, and was generally derelict in his oversight duties.158
Inspector Schaper told Committee staff that in the months following the Trinity Bay Atlas Air
fatal crash he was unwilling to budge on compliance requirements at all. As a result, he would
not acquiesce to the operator or FAA management pressure to deviate from FAA regulations.
As a result of the Atlas Air complaint, a management inquiry was initiated by Schaper’s
Atlas CMO Office Manager, who assigned the same FAA Inspector to investigate the matter that
was assigned to the whistleblower management inquiry discussed in ASAP – Improper Repairs
section of the report. This same investigator recently served on a detail to AAE. Committee
investigative staff have reviewed the resulting Report of Investigation (ROI) dated March 17,
157
U.S. Department of Transportation, Federal Aviation Administration, Volume 2 Air Operator and Air Agency
Certification and Application Process, Chapter 11 Certification of a Title 14 CFR Part 145 Repair Station, Section
4 Evaluate a Part 145 Repair Station Manual and Quality Control Manual or Revision, order 8900.1 CHG 102
(Washington, DC, 2011),
https://fsims.faa.gov/wdocs/8900.1/change%20history/editorial%20corrections/00_00_editupdate(fy11-02).pdf.
158
Management Inquiry #20200102001 (March 17, 2020), page 2 through page 39.
63
2020, for Case#MI20200102001. The investigator pursued the following allegations against
Inspector Schaper.
Does not communicate with company team members.
When communication is received, it is negative in nature. The example provided
explained that a phone call occurred where a request was being made of the POI and his
reply was curt, stating that the company could choose between his continuing to review a
manual or address the issue at hand, but that he could not do both.
Work practices were also addressed stating that the POI works a four day work week and
that he will not support other communication outside of those four days.
Has placed certain limitations on what he is willing to do on certain days, stating that he
will not do certification work on Mondays, or Fridays.
Told the Head of the Publications Department that he doesn’t work for Atlas Air.
Informed company personnel that he works Tuesday through Thursday and would not
perform duties outside of that time.
Imposed a restrictive manual submission policy.
Will not approve manuals until weeks after reviews are completed.
Blames the company for processing delays that he played a part in.
Is causing work stoppages and stated that they could provide many examples where
letters/manuals/8430s that were submitted on time were delayed by the POI.
Inspector Schaper had been approved for a 4/10 work schedule; however, FAA policy
does not permit ASIs to work unapproved overtime, and he had been consistently reminded of
the policy. Salaried managers are available for after hours and other operator inquiries and can
assign tasks as required. Despite this clear policy, the CMO Office Manager directed the PAI,
PMI, and then POI Schaper to provide personal cell phone numbers to the operators and to
answer inquiries at any time. This directive was contradictory and in direct violation of FAA
policy regarding use of personal communications devices for official business.159 The
management inquiry did not include an interview of a single one of Inspector Schaper’s co-
workers or any other FAA employees. The investigator’s interviews were limited to four senior
officials of Atlas Air. This lack of objectivity and balance in the conduct of the inquiry is
concerning from the perspective of utilization of best investigative practices, professional
conduct, and it may suggest bias. The Committee’s investigation found management inquiries
such as this often lack of any review or oversight outside of the line of business. Equally
concerning is that the investigator asserts in the beginning of his report that “this investigation
was accomplished by Jeff Graves, Assistant Manager, Atlanta CMO, AFC-500, in accordance
with FAA Order 1110.125B.”160
159
U.S. Department of Transportation, Federal Aviation Administration, National Policy, Cellular/Satellite Device
Acquisition and Management, order 1830.9A (Washington, DC, 2009),
https://www.faa.gov/documentLibrary/media/Order/1830.9A.pdf.
160
U.S. Department of Transportation, Federal Aviation Administration, “1110.125B – Federal Aviation
Administration (FAA) Accountability Board, Document Information” (order 1110.125B issued October 26, 2018),
https://www.faa.gov/regulations_policies/orders_notices/index.cfm/go/document.information/documentID/1034808.
64
This Order defines the scope of the [Federal Aviation Administration]
Accountability Board (AB) to include allegations or incidents of verbal,
written, graphic, or physical harassment and other misconduct that
creates, or may reasonably be expected to create, an intimidating,
hostile, or offensive work environment based on age, color, disability,
gender, national origin, race, religion, genetic information, sexual
orientation, sexual misconduct, reprisal, and management’s failure to
report. This Order also prescribes procedures for reporting,
investigating, processing such allegations, and analyzing AB data to
identify trends to support Agency leadership in addressing allegations of
harassment.161
The conduct alleged against Inspector Schaper had nothing to do with the parameters and
authority of the accountability board as described in this order. It is unclear why such an
authority would be cited when it is clearly not applicable to these allegations or investigation.
On April 10, 2020, Inspector Schaper received a letter of reprimand stating that his
conduct toward Atlas Air team members was inappropriate. That same day, he was involuntarily
reassigned to be the POI for Air Transport International. The reassignment memo he received
referenced the fact that,
Senior Leadership at Atlas Air have alleged they no longer trust you to
objectively conduct regulatory oversight of their company. Inspectors
must be sensitive to any conflict, which are actual or perceived that
could disrupt the effectiveness or credibility of the Flight Standards
Service mission.
The events preceding this management inquiry, and its conduct and findings, strongly
suggest FAA CMO management focus on the happiness and success of the operator vs. the
veracity of oversight conducted by the FAA. Inspector Schaper has filed a complaint with the
Office of Special Counsel (OSC) which was accepted, and is an ongoing investigation.
Most recently an Atlas Air 747-400 flying for DHL experienced a hard landing at
Incheon International Airport in Seoul, South Korea, on August 5, 2020. No one was injured.
According to whistleblowers with direct knowledge of the incident, three of the plane’s four
engines made contact with the runway. According to whistleblowers and pilots queried by
Committee staff, the severity of an impact with which an inboard engine on a 747 contacts the
ground is alarming. Media reporting on the incident includes statements from an Atlas
spokesperson citing adverse weather as the cause. While weather and specifically wind was
likely a factor, whistleblowers contend the wind conditions as understood were not alarming
especially for a 747, and suggest pilot error due to a lack of training and proficiency might also
be a factor.
161
Ibid.
65
These events are representative of a disturbingly large number of whistleblower
disclosures to the Committee of complaints made by regulated entities against the very
inspectors charged with their oversight. Often, these complaints come soon after an inspector
proposes a compliance or enforcement action against the regulated entity. The Committee has
serious concerns regarding the professionalism and veracity of management inquiries, which as
currently implemented allows them to be used as an instrument of retaliation by management
without any objective review or oversight.
The fact that two management inquiries into two separate unrelated whistleblower cases
utilized the same detailed Inspector and suspect investigative methods is of concern. More
concerning is what the Committee has revealed in regard to the Office Manager for the Atlas Air
CMO. In 2008, the same manager provided testimony to the House Committee on
Transportation and Infrastructure regarding safety concerns about Southwest Airlines and
whistleblower retaliation in the FAA.162 A few years later, he/she took a position with the Office
of Audit and Evaluation, the very office charged with whistleblower investigations in the 2012
FAA Modernization and Reform Act. According to documents reviewed by the Committee and
testimony by witnesses and whistleblowers, the manager used the knowledge gained during his
time in AAE to retaliate against the very employees he was responsible for protecting. This
conduct was memorialized by a colleague in March and April of 2014.163 The manager was
quickly reassigned out of AAE. A management inquiry was directed and conducted by the same
office, to which the manager was reassigned, and according to whistleblowers he was receiving
direction to retaliate from that very office. It is unknown if the manager was held accountable
for his alleged misconduct.
Finding: Senior managers in FAA Flight Standards may lack technical knowledge and
experience to effectively lead aviation safety regulatory oversight programs.
162
U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, Critical Lapses in
Federal Aviation Administration Safety Oversight of Airlines: Abuses of Regulatory “Partnership Programs”:
Hearing Before the Committee on Transportation and Infrastructure, 110th Cong. 2d sess., April 3, 2008 (testimony
of Douglas Peters, Aviation Safety Inspector, Federal Aviation Administration, and Boeing 757 Partial Program
Manager, American Airlines Certification Unit, AMR CMO, see p. 20),
https://www.govinfo.gov/content/pkg/CHRG-110hhrg41821/pdf/CHRG-110hhrg41821.pdf.
163
Memorandum for Record, March 14, 2014, April 18, 2014,
https://www.commerce.senate.gov/services/files/621F43CC-9CFE-45AE-BA35-CD5EF9A60FC4
66
but well known by local employees and representatives of the Professional Airway System
Specialist (PASS) union.
On July 31, 2019, Chairman Wicker sent a letter to then Acting FAA Administrator
Elwell requesting documents that included information specific to allegations of misconduct in
Hawai’i.164 On September 5, 2019, Committee staff provided the FAA a prioritized request for
certain items included in the July letter. This prioritized request again included information
regarding a specific aviation company in Hawai’i. The Committee has requested documents
related to whistleblower allegations of whistleblower retaliation and misconduct at the Honolulu
FSDO on July 31, September 5, and December 18, 2019, and has yet to receive many of the
specific documents requested.165
Novictor Helicopters
Mr. Monfort alleges that some managers in the Hawai’i FAA office have an
inappropriately close relationship with Novictor Aviation, a helicopter tour operator in Hawai’i.
According to Mr. Monfort, these FAA managers have granted multiple policy deviations for
Novictor. The Committee notes that three Novictor crashes have occurred in the last two years,
one of which resulted in three deaths.166
164
Letter from Roger F. Wicker, Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, to
Daniel Elwell, Acting Administrator, Federal Aviation Administration, July 31, 2019,
https://www.commerce.senate.gov/services/files/A22129F6-E00F-4D4D-B22A-65DAF61B2227.
165
U.S. Senate Committee on Commerce, Science, and Transportation, “Fact Sheets: Update to Whistleblower
Allegations of Misconduct at the FAA Flight Standards District Office in Honolulu, Hawai’i,” June 17, 2020,
https://www.commerce.senate.gov/2020/6/update-to-whistleblower-allegations-of-misconduct-at-the-faa-flight-
standards-district-office-in-honolulu-hawai-i.
166
Mark Huber, “Hawaii Helitour Operator Suffers another Crash,” AIN Online, May 1, 2019,
https://www.ainonline.com/aviation-news/general-aviation/2019-05-01/hawaii-helitour-operator-suffers-another-
crash.
67
recently recommended eliminating the exemption that allows certain air tours to operate under
Part 91.167
In a previous incident involving Novictor, Mr. Monfort became aware that a Novictor
helicopter had made an emergency landing near Wahiawa, Hawai’i, on September 18, 2018,
damaging the aircraft. According to Mr. Monfort, Novictor did not notify the local FAA office,
which it was required to do under normal procedure. FAA inspectors only learned of the event
when an inspector happened to see the damaged helicopter being transported near the local FAA
office with the tail number taped over. A subsequent investigation into the emergency landing
found that the accident occurred due to poor maintenance practices and pilot error. The staff who
entered these findings into the FAA database that tracks these incidents left the pilot and operator
fields blank. According to Mr. Monfort, this is highly unusual and appeared to have been done
167
National Transportation Safety Board, Inadvertent Activation of the Fuel Shutoff Lever and Subsequent Ditching
Liberty Helicopters Inc., Operating a FlyNYON Doors-Off Flight Airbus Helicopters AS350 B2, N350LH, New
York, New York, March 11, 2018, NTSB/AAR-19/04 (Washington, DC, 2019),
https://www.ntsb.gov/investigations/AccidentReports/Reports/AAR1904.pdf.
168
Cornell Law School, Legal Information Institute, “14 CFR 119.71 – Management Personnel: Qualifications for
Operations Conducted under Part 135 of this Chapter,” https://www.law.cornell.edu/cfr/text/14/119.71.
169
KITV 4 Island News, “Update: NTSB Releases Preliminary Report on Deadly Helicopter Crash in Kailua,” May
9, 2019, https://www.kitv.com/story/40385953/update-three-dead-after-tour-helicopter-crashes-in-kailua-
neighborhood.
68
to obscure attribution of the incident to the pilot and Novictor. As a result, a search of the FAA’s
internal accident database for “Novictor” or the pilot’s name does not reveal this incident. Mr.
Monfort alleges that this discrepancy in the FAA incident report is evidence of an effort by
Novictor and/or FAA employees to divert attribution of this incident away from Novictor.
Safari Aviation
Mr. Monfort was also assigned to conduct oversight of Safari Aviation, Inc., a helicopter
tour operator located on the island of Kaua’i. In September and November 2019, Mr. Monfort
requested two travel authorizations to proceed to Kaua’i to inspect Safari Aviation. Both requests
were denied by FAA managers, making it almost impossible for Mr. Monfort to perform
adequate FAA oversight. On December 26, 2019, a Safari Aviation tour helicopter crashed,
killing seven.170 In 2016, Mr. Monfort had initiated a review of Safari’s training program due to
deficiencies he noted in a check ride with the pilot involved in the December 26, 2019, crash.
During these episodes, Mr. Monfort repeatedly appealed to his office’s senior managers
to have his direct manager’s decisions overturned. Mr. Monfort alleges that as a result, he
received two separate suspensions that amount to whistleblower retaliation. Mr. Monfort has
filed a whistleblower retaliation complaint with the Office of Special Counsel.
On December 18, 2019, after not receiving any documents in response to previous
requests about FAA aviation safety in Hawai’i, Committee staff submitted an inquiry to counsel
for the U.S. Department of Transportation (DOT) about the production status of the documents
prioritized on September 5, 2019. The agency indicated the request was in process. Committee
staff emphasized the importance of the specific Hawai’i request and further focused the request
by providing an FAA enforcement file number that had been provided by Mr. Monfort. Eight
days later, while Committee staff awaited the production of these documents, the December 26th
Safari Aviation crash occurred, killing seven.
On January 17, 2020, Committee staff received a tranche of documents in response to the
previous and prioritized requests. Of the 157 pages received, only five were substantively related
to the prioritized topic of Hawai’i. These five pages identified several relevant attachments that
were not provided to the Committee. This document production did not provide all documents
related to the specific FAA enforcement case file requested on December 18, 2019.
On January 22, 2020, Committee staff learned that an FAA Special Agent re-
interviewed Mr. Monfort regarding a previously investigated matter from 2018 in which he
alleged deficiencies in a Part 135 operator’s training program. Additionally, Mr. Monfort was
notified that he would be interviewed by FAA and DOT attorneys in February 2020, regarding a
fatal helicopter accident he investigated in October 2017. Mr. Monfort reports increasing
pressure by his FAA managers to revise findings of his Novictor investigations.
170
Caleb Jones, “Police: All 7 Killed in Hawaii Tour Helicopter Crash,” AP News, December 29, 2019,
https://apnews.com/b15500d19b19291a42cba21b6dee65f7
69
As a result of the Committee’s thorough investigation and review of available documents,
on January 24, 2020, Chairman Wicker requested that the Inspector General for the Department
of Transportation conduct a thorough investigation into these allegations of regulatory violations
and whistleblower retaliation.171
Since releasing its first fact sheet, the Committee continued to receive concerning
information from FAA whistleblowers regarding the Honolulu FSDO.172 On June 21, 2019, an
aircraft serving as a parachute jump plane crashed shortly after taking off from Dillingham
Airport, Mokulēʻia, Hawai’i, killing eleven. The Committee has reviewed documentation citing
a mechanic’s failure to perform the manufacturer’s recommended maintenance as a possible
contributing factor to a loss of control immediately after takeoff. At the time, an FAA inspector
recommended an emergency revocation of the mechanic’s FAA certificate. This
recommendation was submitted in November 2019.
On February 22, 2020, a second aircraft experienced a loss of control immediately after
taking off from Dillingham Airport, crashing and killing two.173 According to information
provided by whistleblowers, an initial inspection revealed that vital cables had broken and
exhibited excessive and abnormal wear. Maintenance records revealed a “100-hour inspection”
was last performed on September 19, 2019, by the same mechanic associated with the accident
that occurred on June 21, 2019. Although the mechanic certified “checking all cables and
control pulleys as required,” FAA whistleblowers contend that the mechanic could not have
reasonably failed to notice the level of wear and tear of the vital cables. They also contend that
the wear could not have occurred in the timeframe between the last maintenance and the crash.
On February 24, 2020, two days after the second fatal crash, and approximately three months
after the FAA inspector recommended the emergency revocation, the FAA issued the mechanic a
letter of re-certification, rather than revocation, allowing the mechanic to retain his/her FAA
mechanic’s certification. FAA whistleblowers allege this is an example of FAA management’s
unwillingness to listen to inspectors and support requested enforcement actions.
On February 20, 2020, FAA whistleblowers expressed concern to the Committee that
the Honolulu FSDO had undertaken a major “file clean-up project” in January that may have
intentionally or inadvertently destroyed documents vital to DOT OIG’s investigation into
allegations in the Committee’s first fact sheet. The Committee has confirmed that the document
171
Letter from Roger F. Wicker, Chairman, United States Senate Committee on Commerce, Science, and
Transportation, January 24, 2020, https://www.commerce.senate.gov/services/files/340B367E-62E4-4D92-AA30-
5C422F29A60C
172
U.S. Senate Committee on Commerce, Science, and Transportation, “Fact Sheet: The Committee’s Investigation
Regarding Aviation Safety,” October 24, 2019, https://www.commerce.senate.gov/2019/10/fact-sheet-Committee-
investigation-aviation-safety.
173
Hollie Silverman and Ralph Ellis, “2 People Killed When a Single-Engine Airplane Crashes in Hawaii, CNN,
February 22, 2020, https://www.cnn.com/2020/02/22/us/hawaii-plane-crash-trnd/index.html.
70
clean-up project occurred, but does not know whether it was in any way connected to the OIG
investigation.
Although the information received by the Committee about these accidents is concerning,
the Committee does not conduct aviation accident investigations or determine cause. The
Committee’s oversight investigation has focused on whether the FAA is properly enforcing
regulations and thereby ensuring the safest aviation system possible. Dozens of FAA
whistleblowers contend that it is not. The National Transportation Safety Board (NTSB) is
responsible for conducting accident investigations and determining cause. Both of these
accidents remain under investigation by the NTSB.174
Since the Committee published its fact sheet on this topic on January 31, 2020, it has
corresponded with six members of the Hawai’ian helicopter tour community. These individuals,
including helicopter tour company employees and former Novictor Aviation Pilots, contacted
Committee investigative staff in support of Inspector Monfort’s assertions, uniformly stating
their opinions that Mr. Monfort is a strict but fair safety inspector, and that the local helicopter
tour community has long held concerns about Novictor Aviation’s operations.
Mr. Monfort alleges that retaliation for his whistleblowing has continued since the
Committee published its first fact sheet. He submitted this information to the Office of Special
Counsel. Mr. Monfort’s attorney advised the Committee that changes to previously approved
accommodations stemming from Mr. Monfort’s disabled veteran status constitute reprisal for
Mr. Monfort’s whistleblowing.
On March 11, 2020, Chairman Wicker sent FAA Administrator Dickson a letter making
him aware of these allegations and asking that he personally ensure that Mr. Monfort was treated
fairly and appropriately. That day, Chairman Wicker also sent Administrator Dickson a letter
requesting a number of documents related to the above allegations.175 To date, the Committee
has not received a substantive response to this request.
Most recently, in August 2020 the Committee received additional information related to
the June 21, 2019, crash that killed eleven in Hawai’i. Documentation reviewed by Committee
investigators outlined a complaint filed by a whistleblower following the fatal crash. The
complaint describes an incident in 2016 involving the plane in question, the damage it sustained,
and the failure of the local FAA office to revoke the plane’s airworthiness certificate. According
to the complaint, the plane suffered a large amount of damage while going up in flames, which
was understood to be non-repairable.176 Local FAA officials received warnings about the
plane’s status and were encouraged to revoke its airworthiness certificate, but did not do so,
believing the owner would not attempt to repair the plane. The complaint further states the
174
National Transportation Safety Board, “The Investigation Process,”
https://www.ntsb.gov/investigations/process/Pages/default.aspx.
175
Letter from Roger F. Wicker, Chairman, U.S. Senate Committee on Commerce, Science, and Transportation, to
Stephen Dickson, Administrator, Federal Aviation Administration, March 11, 2020,
https://www.commerce.senate.gov/services/files/32347991-3947-4EB7-A097-840E198D48DD.
176
Hawaii News Now, “11 Killed in One of Hawaii’s Worst Civilian Aviation Disasters,” June 21, 2019,
https://www.hawaiinewsnow.com/2019/06/22/authorities-responding-reports-possible-plane-crash-north-shore/.
71
owner repaired the plane, and flew it to a different FAA jurisdiction, resulting in no follow up
oversight.
Initial review of documentation obtained by the Committee indicates that the Flight
Standards office investigated this complaint. Committee investigators are unaware if the
complaint underwent any criminal or other review by the Department of Transportation Office of
Inspector General (DOT OIG) prior to the FAA’s internal investigation. The Committee has
requested relevant reports of investigation related to this complaint and will engage the FAA and
DOT OIG further.
On October 28, 2020 the NTSB opened a public docket containing factual information
collected in support of its investigation into the crash of N256TA.177 The evidence revealed in
this docket appears to confirm concerns of a previous whistleblower about the adequacy of the
repairs completed on the airplane following an inflight loss of the right hand horizontal stabilizer
in 2016. The “Maintenance Record Factual Report” section of the docket includes eight-eight
pages of information. The report reveals that parts had been installed the plane that were not
approved replacements.178 The Committee’s review of the documents prompt serious questions
regarding maintenance of the airplane while it was operated in Hawaii. The docket also revealed
the plane required “full aileron trim and some rudder trim in order to fly straight and level”.
According to pilots including FAA Inspectors such a setting is indicative of a larger problem and
should have been investigated and corrected. The cause of the crash remains unknown and the
NTSB is expected to release a final report in 2021.
In August 2018, a DOT OIG audit found that DOT’s criminal referral policies were not
up to date and lacked central availability. A survey utilized as part of this effort revealed a need
for additional training.179 Another DOT OIG audit report, from November 1998 examined
hotline referrals and the FAA Administrator’s Hotline. The audit concluded in part that,
FAA’s process for disposing of referrals from the OIG and FAA
Administrator’s Hotline needs improvement to ensure that allegations of
fraud, waste, or abuse are thoroughly and objectively reviewed and that
corrective actions are taken when warranted.180
In the deficiencies found by the IG audit, the IG concluded in part,
177
Aviation Investigation, 40 docket items, October 28, 2020, FAA Modernization and Reform Act of 2012, (Feb.
14, 2012) available at: https://www.congress.gov/112/plaws/publ95/PLAW-112publ95.pdf
178
Ibid.
179
U.S. Department of Transportation, Office of Inspector General, DOT Operating Administrations Can Better
Enable Referral of Potentially Criminal Activity to OIG, ST2018076 (Washington, DC, 2018),
https://www.oig.dot.gov/sites/default/files/DOT%20Criminal%20Referrals%20Final%20Report%5E08-22-18.pdf.
180
U.S. Department of Transportation, Office of the Secretary of Transportation, Office of Inspector General,
Hotline Referrals, MA-1999-017 (Washington, DC, 1998),
https://www.oig.dot.gov/sites/default/files/ma1999017.pdf.
72
These deficiencies occurred primarily because FAA assigned these
hotline referrals to an office or individual that was not in a position to
render an independent review, including three referrals assigned to the
subject of the allegation or the subject’s immediate supervisor.
Despite the findings of these audits and the adoption of recommendations, the
Committee’s investigation has discovered numerous examples of the same deficiencies. In fact, it
is common practice, as in the Hawai’i example, for Office of Audit and Evaluation (AAE) to
routinely refer hotline complaints to FAA lines of business for investigation rather than conduct
an independent objective investigation of its own. This practice appears to perpetuate
deficiencies identified in 1998 and reaffirmed in 2018.
Finding: FAA improperly allowed a Part 135 Helicopter company in Hawai’i to operate under
Part 91.
Finding: FAA improperly granted check airman authority under Part 135 to the
owner/operator of Novictor Helicopter in violation of 14 CFR Part 119.71
Finding: FAA Management is reluctant in many cases to listen to inspectors and support
requested compliance and enforcement actions.
On March 28, 2019, the Committee corresponded with two FAA Aviation Safety
Inspectors (ASI) from the Long Beach, California, Aircraft Evaluation Group (AEG) office.
These ASIs disclosed concerns that members of the Flight Standardization Boards (FSB) formed
in both Long Beach and Seattle for the Gulfstream VII and Boeing 737 MAX, respectively, had
not completed the required training for job tasks such as issuing type ratings and conducting
check rides. These whistleblowers stated that many ASIs had not completed FAA course number
21000138: “Principles of Evaluation for Operations ASIs,” which serves as foundational training
for all ASI.
One of the whistleblowers described above is ASI James T. Wrigley. Inspector Wrigley
has been in the FAA over six years as an ASI. Prior to this position in the FAA Inspector
Wrigley worked for several other Part 121, 91, 91K and 135 aviation companies as Director of
Operations, Chief Pilot, and Check Pilot. Inspector Wrigley holds a Master’s degree in Aviation
Safety and a degree in Human Services Technology and Occupational Education. He taught
graduate level courses in aviation safety management systems and related subjects for three
years. Inspector Wrigley has over 8,000 combined flight hours and eleven jet type ratings.
Inspector Wrigley and other whistleblowers have shared several concerns with Committee
investigators about training, certifications, management misconduct, and retaliation.
According to the FAA training catalog, FAA course number 21000138 provides “the
judgment and basic experience to GAOP ASIs in conducting pilot evaluations, while
emphasizing job functions. It will teach (ASI) how to conduct evaluations, prepare/develop a
plan of action, what is involved in practical test standards, (and) how to conduct an Airman
73
Certification event.”181 Additionally, Inspector Wrigley and other whistleblowers specified that
the Chairman of the FSB did not have the experience and training necessary for his position.
Whistleblowers disclosed to the Committee that the Chairman skipped procedures during a
number of “check rides,” flights given to certify pilots in a new aircraft, and often admitted to
not knowing the proper procedures or having the proper training. Whistleblowers also stated that
the Chairman had recently served as chair of another FSB for the Mitsubishi Regional Jet, and
that many of the issues identified were most likely occurring on that and other FSBs.
These same whistleblowers also alleged to the Committee that during the certification of
the Boeing 787 aircraft, an unapproved and insufficient replacement for a flight simulator was
used, called the “Iron Bird.” This machine, instead of approved flight simulators, was used to
conduct check rides and issue new type ratings. One whistleblower learned this information from
their now-retired supervisor, who went on to state to the whistleblower that the inappropriate use
of the Iron Bird was a well-known open secret in the FAA AEG. A review of documents and
staff interviews conducted to date have been unable to substantiate this allegation. Remaining
staff interviews and document productions may inform findings on this topic.
Finally, the whistleblowers alleged that multiple FAA employees who were not members
of the Gulfstream VII FSB received check rides and were issued type ratings without taking the
prerequisite training, and in some cases filled out the check ride paperwork without having
completed the ride itself. Despite not completing required training or completing a check ride,
these ASIs received a coveted type rating for this aircraft. These concerns had been disclosed to
FAA management in August 2018, and one whistleblower was repeatedly told to “be quiet” by
his FAA manager. This whistleblower also alleged that they were retaliated against by their FAA
manager, in the form of removal from work assignments and denial of training, for raising these
concerns. The whistleblower elevated his concerns to the DOT OIG in October 2018. DOT OIG
referred the complaint to FAA AAE as well as FAA’s Office of Security and Hazardous
Materials (ASH) in November 2018. The AAE investigation substantiated Mr. Wrigley’s
claims.
The AAE investigation opened as a result of these disclosures exhibited some
irregularities. According to Mr. Wrigley, a senior investigator on the team investigating the
disclosures called him to inform him that the FAA wanted to release his name and that they
would be “OK” as long as they did not link the Boeing 737 MAX FSB to the disclosures.
Inspector Wrigley took this as a threat but refused to limit his allegations.
Additionally, according to Inspector Wrigley, when an Office of Special Counsel (OSC)
investigator requested records of his interview performed by an AAE investigator, OSC was
informed that all audio and video had been lost and that no notes had been taken. Inspector
Wrigley and other FAA employees interviewed by the same AAE investigator stated the
investigator took written notes in each of the respective interviews. Chairman Wicker asked for
these materials on July 31, 2019, and has yet to receive any response to this specific request.
Federal Aviation Administration, “Model Flight Standards Inspector Training,” last modified September 13,
181
2017, https://www.faa.gov/about/initiatives/iasa/mcad/.
74
Subsequent Committee review of AAE investigative products and methods raises serious
concerns regarding the use of best investigative practices.
A third whistleblower, who substantiated the allegations of improper training, alleged
that multiple colleagues had warned them not to speak with Congress. This whistleblower stated
that it is understood by most employees within their office that speaking to Congress is likely to
result in harsh retaliation by managers. This whistleblower was also interviewed by AAE and
alleged that in addition to recording audio on an iPhone, the investigator took notes during the
meeting. The whistleblower was subsequently removed from the GVII FSB, allegedly as a result
of speaking to Congress and AAE investigators. The Committee has not received any of these
investigative materials as requested by Chairman Wicker. A fourth whistleblower contacted the
Committee and corroborated the whistleblower retaliation claims made by others.
On October 28, 2019, Department of Transportation Office of General Counsel (DOT
OGC) provided the ninth tranche of documents related to the Committee’s document request.
Among the documents provided was an August 30, 2018, email from the FAA manager found by
AAE to have retaliated against a whistleblower for raising concerns regarding ASI training, to
the FAA Inspector/Chair of the Gulfstream VII FSB. In this email, the office manager admits
that many AEG operations inspectors had not received the necessary training to give certification
checks as members of the FSB.182 He states:
Consider this, from 1985 to 2005, the only folks eligible to become AEG
Operations Inspectors (for transport aircraft) were from the air carrier
side of the house. I suspect that none of them had formal training on
conducting full certification checks in airplanes, yet many checks were
given over the years. Impact to safety? In my opinion, little to none.
The office manager was an experienced inspector and manager at the FAA. His view that
there exists a “training lapse” within AEG contradicts statements made by FAA officials,
including those of then Acting Administrator Elwell in his May 2, 2019, letter to Chairman
Wicker. Additionally, this communication shows that as far back as August 2018, before
whistleblowers elevated their concerns to DOT OIG, managers in the FAA Long Beach AEG
office were aware of these training deficiencies. Furthermore, the email goes on to explain that
the Chair of the Gulfstream VII FSB was missing the training as well:
182
Email regarding OTJ Tracking and FSB Checks, August 30, 2018,
https://www.commerce.senate.gov/services/files/5435127C-D02A-4B79-AB32-86F86F11F970
75
Unfortunately, your OJT (on the job training) records only show
completion of Level 1 for Conducting Pilot Type Rating Practical Tests.
(…) The thing is there are no JTA or OJT tasks at Level 2 or Level 3 that
are found in the OJT program for Ops Inspectors. Essentially no new
AEG Ops inspector has an OJT task to train for or evaluate expertise in
pilot certification activities. Go figure. I consider this whole situation to
be a bump in the road. I do, however, anticipate a course requirement in
the near future for all AEG inspectors who need pilot certification
training.
Statements made by numerous FAA managers interviewed by the Committee contradict
the statement above. One manager told the Committee everyone had completed OJT prior to
conducting type rating check rides and that current records reflected this. Two whistleblowers
allege an effort by Flight Standards management to “update” records to hide the training
deficiencies. The Committee has not been able to substantiate this allegation.
It is not immediately clear why the office manager went on to tell Inspector Wrigley to
keep quiet about his concerns regarding insufficient training, or why the office manager chose
not to elevate his findings in order to begin the necessary organizational corrective action. The
office manager retired from the FAA in January 2019, and was not made available to the
Committee for an interview prior to his departure.
Another concern brought forth by Inspector Wrigley was the deficiency in the training
and checking done by the FSB Chairman as a result of the lack of training and/or OJT. Inspector
Wrigley claimed a maneuver which requires an engine shut down during a check-ride was not
performed during his own check ride and that of at least one other FAA ASI. Documentation
reviewed by the Committee and an interview with the other Inspector confirmed this assertion.
The Committee has learned other ASIs have also skipped this procedure, including while
working on other FSBs. Another Long Beach AEG ASI confirmed this omission has been
supported by management, saying it really is not necessary and has been deemed unsafe by their
current AEG Long Beach management. Regardless, it is a requirement that is being blatantly
ignored. According to Inspector Wrigley, at least one senior official in FAA Flight Standards
shared his concern about the validity of thousands of pilot certifications completed by
unqualified inspectors. The official shared concerns about whether an extensive audit should be
done and rechecks known as 709s is required.
The Administrator of the Federal Aviation Administration may re-inspect
at any time a civil aircraft, aircraft engine, propeller, appliance, design
organization, production certificate holder, air navigation facility, or air
agency, or reexamine an airman holding a certificate issued under
section 44703 of this title.183
Cornell Law School, Legal Information Institute, “49 U.S. Code § 44709 – Amendments, Modifications,
183
76
A “709” check ride is considered a re-examination of a pilot’s certification184; this would
be needed if a pilot was involved in an incident that questioned his/her ability to complete the
qualifications of his/her job.185
Staff interviews related to the Gulfstream FSB and related training allegations revealed a
lack of knowledge among senior managers. Many did not know what several of the requirements
were for conducting an FSB or performing check rides. One senior manager had no FAA
operational oversight experience at all before being detailed without competition from an
administrative position to an operational role. Another senior AEG manager who has significant
responsibility for FAA FSB disclosed he/she had no prior FSB experience before joining the
AEG as a manager. They were unable to answer basic questions about FSB requirements. More
concerning he/she was also unable to answer procedural questions about the conduct of check
rides. Despite the findings of AAE and OSC, this AEG manager asserted nobody had done
anything wrong.
The FAA Office of Audit and Evaluation, the Office of Special Counsel, and the
Committee’s investigation all concluded that many Aviation Safety Inspectors in the FAA
Aircraft Evaluation Group lacked required training and credentials to conduct some of the jobs
they were tasked. AAE determined approximately 76 percent of AEG ASI lacked the required
training. Henry Kerner, Special Counsel, concluded that, "[t]he FAA's failure to ensure safety
inspector competency for these aircraft puts the flying public at risk." The importance of these
investigative findings reach beyond high profile commercial airlines tragedies, including the
737-MAX.
The examples described above regarding improperly trained and unqualified check
airmen is not a new problem in the FAA. A 2017 DOT OIG report found in part, “FAA’s
processes are insufficient to ensure that required training and observations for check pilots and
APDs are completed or documented prior to approval.” And that “FAA’s oversight is insufficient
to ensure that air carriers meet ongoing check pilot requirements.”186 Despite the OIG findings
and FAA adoption of the recommendations, challenges related to FAA internal compliance with
check airman qualification requirements persist.
FAA Training
184
Rick Durden, “The FAA 709 Checkride: Protecting Yourself,” The Aviation Consumer, updated October 29,
2019, https://www.aviationconsumer.com/safety/the-faa-709-checkride-protecting-yourself/.
185
U.S. Department of Transportation, Federal Aviation Administration, Volume 5 Airman Certification, Chapter 7
Reexamination of an Airman, Section 1 Conduct a Reexamination Test of an Airman Under Title 49 of the United
States Code, order 8900.1 CHG 272 (Washington, DC, 2013),
https://fsims.faa.gov/wdocs/8900.1/v05%20airman%20cert/chapter%2007/05_007_001rev1.htm
186
U.S. Department of Transportation, Office of Inspector General, FAA Has Not Ensured All Check Pilots Meet
Training and Observation Requirements, AV2017050 (Washington, DC, 2017),
https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20Check%20Pilots%20Final%20Report%5E
5-31-17.pdf.
77
training content and duration in the FAA over the past several years. According to the FAA
website, “this course is to provide the judgment and basic experience to GAOP ASIs in
conducting pilot evaluations, while emphasizing job functions.187 It will teach you how to
conduct evaluations, prepare/develop a plan of action, what is involved in practical test
standards, how to conduct an Airman Certification event, and have hands on exercises in an FTD
to apply these principles.”
This whistleblower, an experienced training manager, indicated that ASIs in all areas
were lacking experience and subject matter expertise. The whistleblower indicated that the
foundational training course number 21000138 had been reduced from three weeks to five days
in length over the past several years. The Committee reviewed documents provided by the
whistleblower which support his/her claims.
Another whistleblower contacted the Committee with additional allegations of improper
training. This whistleblower was assigned to the FAA Academy and tasked with revising FAA
courses concerning the Organization Designation Authorization program, as a result of a DOT
OIG finding in 2011.188 In 2015, the whistleblower filed a complaint with the DOT OIG alleging
that safety training courses for FAA employees were deficient and did not meet a recent
Congressional mandate. Following what the whistleblower alleges to be a period of harassment
by FAA managers, in early December 2015, the whistleblower was notified of an FAA proposal
to suspend him/her for five days for “improper conduct and failure to contribute to a hospitable
work environment.” The whistleblower and another co-worker who supported the allegations
resigned from the agency under duress.
The Committee investigation found that ineffective leadership, training deficiencies and
dysfunction are not new in the FAA. A report from AAE Director Clayton Foushee to
Administrator Michael P. Huerta in September 2015 detailed findings of an investigation
prompted by internal whistleblower contributions, including file numbers IWB14803 and
IWB14807.189 The investigation was originally focused on the FAA Flight Program, which is
responsible for FAA flight program safety.190 The scope of the investigation expanded after
accidents occurred in the Flight Standards and Aircraft Certification programs.
According to the report, concerns about FAA flight programs came into focus following a
fatal accident of FIS aircraft N82, a Beech Super King Air, in Front Royal, Virginia, killing three
people in October 1993. The NTSB made several observations and recommendations as a result
of their investigation. Factual observations included nonexistent surveillance of flight activity,
187
U.S. Department of Transportation, Federal Aviation Administration, “FAA Catalog of Training,”
https://www.academy.jccbi.gov/catalog/CPNT/Details/1290.
188
U.S. Department of Transportation, Office of the Secretary of Transportation, Office of Inspector General, FAA
Needs To Strengthen Its Risk Assessment and Oversight Approach for Organization Designation Authorization and
Risk-Based Resource Targeting Programs, AV-2011-136 (Washington, DC, 2011),
https://www.oig.dot.gov/sites/default/files/FAA%20ODA%206-29-11.pdf.
189
FAA Flight Program Oversight Noncompliance to FAA Policy and Regulation, On File with the Committee
190
U.S. Department of Transportation, Federal Aviation Administration, “Flight Program Operations,” last modified
September 22, 2020,
https://www.faa.gov/about/office_org/headquarters_offices/ato/service_units/flight_program_operations/.
78
other oversight efforts intentionally thwarted by management, management provided insufficient
oversight of the program, and there were no specialized experience requirements for executives
and managers.191
The NTSB made several recommendations which included “require flight operations-
related experience of those individuals who manage or oversee flight operations activities.”192
This recommendation is notable, as over twenty-seven years later dozens of whistleblowers and
FAA officials have expressed serious concerns to Committee investigators regarding the
qualifications of numerous managers and executives in Flight Standards. An internal FAA
investigation related to a 2014 flight program plane crash in Alaska found that FAA employee
training requirements were inadequate or deficient.193 The same investigation observed a need to
evaluate “minimum training requirements prior to conducting certification flight test.”194 A
November 2017 monthly message from former Flight Standard Executive John Duncan appears
to be in direct conflict with the NTSB recommendations. It says in part: “In many ways,
leadership is about letting go. To be effective, a leader has to consciously let go of several
things.” It goes on to say: “First is to let go of the notion that a leader’s job is about technical
expertise.”195
The NTSB report made several observations about the FAA Aircraft Evaluation
Group. 196
They include “training requirements have been weakened and now maintain a
currency at a lesser standard than the proficiency of the standard needed for job task.” This
finding of deficiency appears to be the difference in training that then Acting Administrator
Elwell referred to as the justification for AEG ASI to be lesser qualified than other ASI to
perform critical job tasks such as those on the 737 MAX. The report goes on to emphasize the
omission of AEG from FAA order 4040.9e: “Creates confusion when AEG pilots seek approval
for required and concurrent training.” In addition the report found “no evidence of any oversight
activities of AEG flight activities” and that “AEG pilots have been unable to maintain currency
because required refresher training in specific aircraft types has not been made available.”197
The various reports and related documentation reviewed by Committee investigative staff
detail systemic training deficiencies (specifically evaluation and validation) in training ASIs and
engineers, in deficiencies and irregularities in investigative processes to ensure corrective actions
and lack of senior executive accountability. These challenges appear to persist today as
described elsewhere in this section and other parts of this report.
191
National Transportation Safety Board, Aircraft Accident Report: Controlled Flight into Terrain, Federal Aviation
Administration, Beech Super King Air 300/F, N82, Front Royal, Virginia, October 26, 1993, AAR-94/03,
(Washington, DC, 1994) http://libraryonline.erau.edu/online-full-text/ntsb/aircraft-accident-reports/AAR94-03.pdf.
192
Ibid.
193
Ibid., 24.
194
Ibid.
195
Monthly Message from John Duncan, November 2017,
https://www.commerce.senate.gov/services/files/C43745A3-E73E-4558-AD70-E67961FD15BA
196
National Transportation Safety Board, Aircraft Accident Report: Controlled Flight into Terrain, Federal Aviation
Administration, Beech Super King Air 300/F, N82, Front Royal, Virginia, October 26, 1993, AAR-94/03,
(Washington, DC, 1994) http://libraryonline.erau.edu/online-full-text/ntsb/aircraft-accident-reports/AAR94-03.pdf.
197
Ibid., 26.
79
In April 2019, a hotline complaint was filed alleging outdated and wasteful training. The
complaint even indicates that the instructors teaching the course admitted it was outdated. The
nature of the courses is particularly concerning as two of them are related to Designated Agency
Representatives (DAR) including management or oversight of DAR. According to the FAA: “A
Designated Agency Representative (DAR) is an individual appointed in accordance with
14 CFR §183.33 who may perform examination, inspection, and testing services necessary to the
issuance of certificates.198 Two types of DARs include manufacturing (DAR-F) and
maintenance (DAR-T): DARs are discussed further in the Skyline Airplane subsection of this
report. A related program is the Organizational Designated Airworthiness Representative
(ODAR). The Organization Designation Authorization (ODA) program is the means by which
the FAA grants designee authority to organizations or companies.199 Boeing Inc., for example, is
an ODAR due to its ODA status. Deficiencies in training have been well known by FAA senior
managers for the last decade. Foundational training in oversight transcends all areas of aviation
safety. As described above, deficiencies in oversight training were acutely understood by the
FAA prior to the tragic 737 MAX crashes. These deficiencies persisted a year after the crashes
as evidenced by the Hotline complaint alleging deficient ODA training. Effective oversight of
the Boeing ODA remains a major focus of 737 MAX scrutiny and investigation.
Most recently, in September 2020 an additional whistleblower came forward to advise
Committee investigators that training related to the Safety Assurance System was being
conducted in an ineffective and wasteful manner. According to the FAA, “the Safety Assurance
System (SAS) is the Federal Aviation Administration’s (FAA) oversight tool to perform
certification, surveillance, and continued operational safety. SAS includes policy, processes, and
associated software that Flight Standards Service (FS) uses to capture data when conducting
oversight.”200 The training is designed to ensure FAA ASI know how to properly conduct and
record SAS activity and is based on policy. The whistleblower alleges the current SAS training
effort was being rushed to meet an October 2020 deadline. However, approved policy had not
been completed, which largely shapes the training. Therefore, the ASIs are being trained
according to the current draft policy. The whistleblower contends this practice is wasteful
because in his/her over twenty years of FAA experience, this type of draft policy often changes
before it is approved. Therefore, if the policy changes in any substantive way, new training
would likely be required. Meanwhile, ASIs will be operating based on the training they have
received, which may have been informed by policy that is outdated. The whistleblower contends
this level of performance and execution in Flight Standards is par for the course. He/she further
asserts that the FAA would not allow the approval of an operator’s training for anything based on
draft policy.
198
U.S. Department of Transportation, Federal Aviation Administration, “Manufacturing and Airworthiness
Designees,” last modified July 31, 2020,
https://www.faa.gov/other_visit/aviation_industry/designees_delegations/individual_designees/manufacturing/.
199
U.S. Department of Transportation, Federal Aviation Administration, “Delegated Organizations,” last modified
December 14, 2018,
https://www.faa.gov/other_visit/aviation_industry/designees_delegations/delegated_organizations/.
200
U.S. Department of Transportation, “Safety Assurance System (SAS),” last modified October 8, 2019,
https://www.faa.gov/about/initiatives/sas/#:~:text=The%20Safety%20Assurance%20System%20%28SAS%29%20i
s%20the%20Federal,%28FS%29%20uses%20to%20capture%20data%20when%20conducting%20oversight.
80
Interviews
An FSB is responsible for determining requirements for pilot type ratings, development
of training objectives, recommendations to use in the approval process of an operators training
program, and to ensure initial flight crewmember competency. The FSB also conducts initial
training for FAA inspectors and the manufacturer’s pilots. An FSB is typically comprised of a
chairperson from the FAA Aircraft Evaluation Division, FAA operations inspectors, FAA Office
of Safety Standards representatives, and technical advisers from other FAA offices.201
The Committee’s interviews revealed conflicting information about the Gulfstream VII
FSB. Then Acting Administrator Daniel Elwell asserted in a response to one of Chairman
Wicker’s letters that the FAA immediately stopped all Gulfstream VII FSB activity on July 24,
2018, so it could review all Aircraft Evaluation Group (AEG) ASI training histories. To date, the
Committee has not received any documentation supporting this claim. Mr. Wrigley, other
whistleblowers, and several employees interviewed by the Committee allege that no such work
stoppage ever took place. The employees included ASIs and multiple levels of Flight Standards
management. Three different Flight Standards managers answered the question with three
different answers. The most senior FAA manager indicated he/she originated the directive, but
could not recall if it was verbally, in writing, or both. The most junior manager asked about the
work stoppage indicated the stoppage was his/her idea and confirmed it was verbal, but may
have also sent an email. The final FAA manager, from the AEG, could not recall if the work
stoppage was communicated verbally, in writing, or both.
Committee staff interviewed two FAA employees with direct knowledge of the conduct
of the 737 MAX Fight Standardization Board. They were also familiar with allegations made by
whistleblowers and concerns raised by the Committee related to the Gulfstream VII FSB. The
employees asserted that the 737 MAX FSB was conducted professionally and diligently. They
were unaware of any pressure from FAA management to influence the proposed training
requirements or general outcome of the FSB and subsequent certification of the 737 MAX
aircraft. They acknowledged the existence of Maneuvering Characteristics Augmentation System
(MCAS) early in the evaluation and indicated the FSB removed it from consideration at the
request of Boeing Chief Technical Pilot Mark Forkner. One of the employees indicated that FSB
Chairperson Stacy Klein received technical briefings related to this request. The FAA did not
make Ms. Klein available to the Committee for an interview, despite an initial request almost a
year ago.
Leadership Qualifications
The Committee found that several FAA managers appear to lack qualifications for the
positions they occupy. In one example, an FAA Flight Standards senior manager had no
previous FAA inspection or operational oversight experience prior to becoming an operational
U.S. Department of Transportation, Federal Aviation Administration, “Flight Standardization Board (FSB),” last
201
81
manager. The employee possessed a general management and human resource management
background. The agency handpicked this person to act in an operational management position
without competition. This non-competitive promotion provided the requisite experience to
further qualify the manager for additional operational oversight positions, and the person was
promoted at a rapid pace. During the Committee’s interview, the now senior manager was unable
to answer direct questions about regulatory requirements and procedure, revealing a lack of basic
knowledge of oversight tasks and the role and responsibilities of FAA ASI.
While interviewing another senior manager, the Committee learned of this manager’s
rapid progression from a position as an ASI in a regional FSDO to an acting management
position, followed by the person’s current senior management position in Flight Standards. The
position has significant responsibility over aircraft evaluation and flight standardization,
including Flight Standardization Boards (FSB) used to contribute to the certification of airplanes
like the Gulfstream VII and Boeing 737 MAX. However, the senior manager lacked any
experience in aircraft certification and had never participated in an FSB. The manager was
unable to answer basic technical questions related to these activities for which he/she provides a
senior leadership role.
Finding: An FAA ASI was issued a new type rating without having completed the required
training.
Finding: Thousands of type rating check rides may have been conducted by improperly
certified ASI, potentially rendering them invalid.
Finding: FAA senior managers have not been held accountable for failure to develop and
deliver adequate training in Flight Standards despite repeated findings of deficiencies over
several decades.
Finding: FAA conduct of investigations appear to be inconsistent, and lack objectivity and
diligence, while providing opportunity for abuse and retaliation.
82
Aero Data
In late summer 2017, Southwest Airlines transitioned to a new system for their aircraft
preflight performance calculations. These systems receive inputs such as the weight and balance
of the aircraft, the weather, the runway length, and available fuel to calculate takeoff
performance which pilots rely on for aircraft configuration and required takeoff thrust. This
system permits the airline to preset safety buffers that give pilots a defined amount of extra
runway as a safety margin in the event of a rejected takeoff.
The new application, facilitated by the company “Aero Data,” is called the “Performance
Weight and Balance System” (PWB). PWB’s implementation at Southwest Airlines, according
to Inspector Rees, is designed to make full use of the aircraft’s performance in order to save fuel
and allow for more cargo on the plane. To accomplish these objections, safety buffers previously
incorporated in the calculations were removed. This means that Southwest Airlines flight crews
must now perform at a much higher level due to a reduced margin for error.
Inspector Rees cites an incident in which a Southwest Airlines pilot reached out to him
claiming that the PWB on their plane had calculated a stopping margin of zero feet in several
instances. A margin of zero feet means that if the pilot delayed the decision to reject, or was too
slow to execute the reject procedure by a fraction of a second, the zero foot margin would be
inadequate and the plane would run off the end of the runway. These are the most concerning of
numerous similar instances disclosed by Inspector Rees. Inspector Rees indicated that
Southwest Airlines informed the FAA that the new system PWB was an “apples to apples”
replacement of the previous system and had no differences in safety considerations. When
Inspector Rees raised concerns to his manager, a Supervisory Principal Operations Inspector
(POI), he was told that the changes were technically legal. Inspector Rees maintains that these
changes are incredibly dangerous. They elevated risk even higher on shorter constrained runways
and exacerbated by poor weather conditions. According to Rees, Southwest pilots had been
inadequately trained for and prepared for these changes. Rees received concerns about the PWB
change from numerous line pilots and check airmen at Southwest Airlines. Inspector Rees stated
that some have taken photos of the low or non-existent margins for error and have shared them
among the Southwest Airlines pilot community. In a communications’ sent to Inspector Rees,
one pilot describing a specific event said: “Safety was compromised due to PWB, as much as I
hate to admit that” and “I can tell you without reservation that as a Pilot PWB has been an
impairment to me flying a 737 from A to B safely.” Committee staff spoke to multiple SWA
pilots who confirmed this issue as reported by Rees and shared their concerns. Pilots feared
identifying themselves and being critical of SWA for fear of being fired.
83
Extended Envelope Training
The FAA requires Airlines to carefully track the number and weight of baggage carried
on the aircraft, as well as the number and location of passengers in the cabin, in order to have
accurate data on the weight and balance of the aircraft.205 Performance Weight and Balance
(PWB) data is critical to computations which provide for safe takeoffs and landings. In the case
202
14 CFR § 121.423.
203
U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, The Federal Aviation
Administration’s Call to Action on Airline Safety and Pilot Training: Hearing Before the Subcommittee on Aviation
of the Committee on Transportation and Infrastructure, 111th Cong., 1st sess., September 23, 2009 (prepared
statement of Hon. Randolph Babbitt, Administrator, Federal Aviation Administration),
https://www.transportation.gov/testimony/federal-aviation-administrations-call-action-airline-safety-and-pilot-
training.
204
Letter from Principal Operations Inspector, Southwest Airlines Certificate Management Office, March 1, 2018,
https://www.commerce.senate.gov/services/files/F95D0F7E-40D8-44AD-BF44-A3C74CABD373
205
U.S. Department of Transportation, Federal Aviation Administration, Flight Standards Service, Weight and
Balance Handbook, FAA-H-8083-1B (Washington, DC, 2016),
https://www.faa.gov/regulations_policies/handbooks_manuals/aviation/media/faa-h-8083-1.pdf.
84
of Southwest Airlines, this information is entered into their PWB system, which the pilots rely
on to calculate takeoff and landing performance.
Inspector Rees outlined an ongoing weight and balance compliance issue at Southwest
Airlines. In April 2018, the FAA initiated an enforcement investigation of weight and balance
compliance on Southwest Airlines flights. Southwest Airlines was allowed by FAA management
to self-report compliance based on a self-audit of twenty-five percent of their daily flights.
Southwest reported that seventy-eight percent of the flights audited were not compliant with
FAA weight and balance regulations. In response, Southwest Airlines spent three months
attempting to obtain a waiver to redefine “accurate” instead of correcting their weight and
balance discrepancies. The regulatory definition requires a deviation of zero pounds between
actual weight and weight entered into the PWB system.206 Southwest Airlines requested that the
definition be changed to a maximum allowed deviation of 1500 pounds. This effort was
supported by some local FAA managers, but after continued objection by Inspector Rees, it was
eventually rejected by FAA headquarters.
In August 2018 Southwest Airlines grounded sixty-six airplanes due to aircraft weight
issues.207
In January 2020 the FAA proposed a 3.92 million civil penalty alleging “that between
May 1, 2018, and August 9, 2018, Southwest operated forty-four aircraft on a total of 21,505
flights with incorrect operational empty weights, and center of gravity or moment data.”208
Inspector Rees states that despite his efforts, this non-compliance is ongoing. Coupled
with the reduced performance safety margins incorporated in the new PWB system, as well as
inadequate training for situations that weight and balance discrepancies may create, he expressed
ongoing concerns about the safety situation at Southwest Airlines. Appearing to support
Inspector Rees’ assertions is the fact that Southwest Airlines grounded 115 Boeing 737-800
planes, just five months ago on July 16, 2020.209 This grounding follows over two years of
attempted FAA compliance efforts, a civil penalty, and a DOT OIG audit which found the FAA
to have not followed its own guidance and allowed Southwest Airlines “to continue reporting
inaccurate and non-compliant weight and balance data based on the carrier’s risk
determination.”210
FAA whistleblowers report that recently there have been instances where pilots at
Southwest Airlines have had difficulty getting their aircraft airborne. Preflight calculations are
206
Ibid.
207
Lewis Lazare, “Southwest Airlines Suddenly Grounds Scores of Planes Due to Aircraft Weight Issues,” Chicago
Business Journal, August 13, 2018, https://www.bizjournals.com/chicago/news/2018/08/13/southwest-airlines-
suddenly-grounds-scores-of.html.
208
U.S. Department of Transportation, Federal Aviation Administration, “Press Release—FAA Proposes $3.92
Million Civil Penalty against Southwest Airlines,” January 10, 2020,
https://www.faa.gov/news/press_releases/news_story.cfm?newsId=24575.
209
Claudette Covey, “Southwest Temporarily Grounds 115 Planes,” MSN, September 17, 2020,
https://www.msn.com/en-us/travel/news/southwest-temporarily-grounds-115-planes/ar-BB199HXc.
210
U.S. Department of Transportation, Office of Inspector General, FAA Has Not Effectively Overseen Southwest
Airlines’ Systems for Managing Safety Risks, AV2020019, February 11, 2020, p. 8,
https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20Southwest%20Airlines%20Final%20Repo
rt%5E02.11.2020.pdf.
85
performed by software applications that take inputs such as the weight and balance of the
aircraft, the weather, the runway length, and available fuel to provide pilots with takeoff
instructions such as trim settings and necessary thrust. An audit recently completed by the
Department of Transportation’s Office of Inspector General (DOT OIG) detailed issues with
these systems at Southwest Airlines.211 In the aforementioned instances, the pilots found that the
trim setting calculations were incorrect during takeoff. Pilots had to aggressively use the
electronic trim switches in order to affect enough change in trim to get the plane airborne. FAA
whistleblowers state that the resulting trim settings often exceeded manufacturer tolerances for
takeoff. Committee staff confirmed with whistleblowers and several experienced pilots that this
is an extremely dangerous situation.
Inspector Rees contends that deference to the carrier to self-determine acceptable levels
of risk while consistent with the FAA compliance philosophy is not effective oversight ensuring
the highest level of aviation safety.
Retaliation
In February 2018, Inspector Rees submitted a complaint to the DOT OIG. He submitted
another report to the OIG in March 2018. He submitted a third complaint to OSC in May 2018.
The OSC investigation, which is ongoing, concerns allegations of retaliation against Inspector
Rees for his OIG disclosures and whistleblowing activities. Shortly after his submissions,
Inspector Rees experienced what he characterized as escalating retaliation by managers,
including inappropriate admonishments to not release any information to entities outside of the
FAA.
Inspector Rees advised the Committee he was recently interviewed pursuant to an
investigation and received a proposed suspension of ten days for a complaint made against him
by a private air operator during a local city council meeting in September 2019. Rees believes
the Report of Investigation (ROI) appears to lack objectivity. Among other irregularities, the
only persons interviewed about the incident were the complainant and others that shared the
interests of the complainant. No objective witnesses were interviewed.
“Skyline” Aircraft
211
Ibid.
Alan Levin, USA TODAY, “Inspectors: FAA Officials Gave Southwest a Pass on Safety Checks,” ABC News
212
86
that were well overdue for inspections.213 Southwest Airlines was fined $10.2 million as a result
of these overdue inspections, the largest in FAA history at the time.214 The case received
significant media attention at the time.215 Inspector Boutris contacted the Committee to raise a
number of concerns related to FAA’s oversight of Southwest Airlines.
During the period of 2013 through 2017, Southwest Airlines procured eighty-eight
airplanes, referred to by Southwest Airlines as the “Skyline Aircraft”. These aircraft were
purchased used and previously operated by sixteen various foreign air carriers. Southwest
Airlines used multiple contractors to conduct the required records review and airworthiness
inspection of these aircraft. Delegated Agency Representatives (DAR) designated contractors are
permitted by the FAA to examine and inspect airplanes prior to the issuance of airworthiness
certificates and other approvals.216 After contractors conducted their reviews, Southwest
Airlines, through the DAR process approved by the FAA, were issued eighty-eight aircraft
Airworthiness Certificates, allowing them to enter revenue service.217 Beginning in late 2017
Inspector Boutris began raising safety concerns related to the Skyline Aircraft as a result of
safety inspections. The inspections discovered numerous repairs to critical structures of the
airplanes which did not conform to airworthiness requirements.
In December 2017, Inspector Boutris informed his office manager of his initial concerns
and at the same time he sent a letter to Southwest Airlines.218 Additional letters escalating the
situation to an enforcement action finally overcame Southwest Airlines unresponsiveness.
On April 3, 2018, Inspector Boutris shared his concerns in an email to FAA’s office of
Audit and Evaluation (AAE). Inspector Boutris made subsequent notifications to AAE during
2018. Specifically, in a September 19, 2018, email he requested that the office look into his
safety concerns regarding the eighty-eight Skyline aircraft.219
In May of 2018, ASI Boutris discovered additional discrepancies in the records of some
of the eighty-eight Skyline aircraft during routine inspections. The discovery prompted a full
records review by Southwest Airlines of all eighty-eight aircraft. This review revealed 360 major
repair that had been previously unknown to Southwest Airlines because they were not disclosed
213
U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, Critical Lapses in
Federal Aviation Administration Safety Oversight of Airlines: Abuses of Regulatory “Partnership Programs”:
Hearing Before the Committee on Transportation and Infrastructure, 110th Cong. 2d sess., April 3, 2008,
https://www.govinfo.gov/content/pkg/CHRG-110hhrg41821/pdf/CHRG-110hhrg41821.pdf.
214
Johanna Neuman, “FAA’s ‘Culture of Coziness’ Targeted in Airline Safety Hearing,” Los Angeles Times, April
4, 2008, https://www.latimes.com/travel/la-trw-airlines4apr04-story.html.
215
NPR, “FAA Too Close to Airlines,” April 3, 2018,
https://www.npr.org/templates/story/story.php?storyId=89341199.
216
U.S. Department of Transportation, Federal Aviation Administration, “Individual Designees,” last modified
January 31, 2019, https://www.faa.gov/other_visit/aviation_industry/designees_delegations/individual_designees/.
217
U.S. Senate Committee on Commerce Science and Transportation, “Fact Sheet: Southwest Airlines Skyline
Aircraft Concerns,” November 11, 2019, https://www.commerce.senate.gov/2019/11/fact-sheet-southwest-airlines-
skyline-aircraft-concerns
218
United States Department of Transportation, Federal Aviation Administration, Memorandum, September 28,
2018, https://www.commerce.senate.gov/services/files/0CE954C0-FADC-44FA-B20B-D41CF7C3DC22
219
Email from Charalambe Bobby Boutris, April 3, 2018,
https://www.commerce.senate.gov/services/files/4549B5DD-6201-45A8-8EEC-F09EBAB61A5C
87
in the contractors’ initial review of the aircraft records. According to 14 CFR § 1.1 - General
definitions a Major Repair is a repair:
220
Cornell Law School, Legal Information Institute, “14 CFR § 1.1 - General Definitions,”
https://www.law.cornell.edu/cfr/text/14/1.1.
221
Email from Michael Zenkovich to Charalambe Boutris, September 18,
2018),https://www.commerce.senate.gov/services/files/8031648E-9057-4B65-B98B-6C1B9A527FE3
222
United States Department of Transportation, Federal Aviation Administration, Memorandum, September 28,
2018, https://www.commerce.senate.gov/services/files/0CE954C0-FADC-44FA-B20B-D41CF7C3DC22
88
On November 27, 2018, Southwest Airlines grounded 34 Boeing 737-700 aircraft.
Media reporting on the grounding revealed an FAA mandate for inspections of planes acquired
from foreign vendors.223
On November 28, 2018, via e-mail, Mr. Miller, Director, Aviation Safety, Air Carrier
Safety Assurance, informed Inspector Boutris that based on the elevated risk that the CMO was
identifying, he had requested that Alan Stephens, AFC-300, Division Manager, devote 100
percent of his time to the CMO. On October 24, 2019, via e-mail, Inspector Boutris raised his
concerns in detail to the Deputy Director, Office of Air Carrier Safety Assurance but got no
response/support. Finally, dissatisfied with inaction at all levels of FAA management, Inspector
Boutris shared his safety concerns with the DOT OIG in November 2018.224
Despite Inspector Boutris’ repeated reporting and elevation of his safety concerns, the
FAA agreed to allow Southwest Airlines to continue operating these aircraft in revenue service
while they assessed the previous repairs over a two year period with a target completion date of
July 1, 2020. As a result, Southwest Airlines continued to operate dozens of aircraft in an
unknown airworthiness condition for thousands of flights for several years after Inspector
Boutris repeatedly raised significant aviation safety concerns. Inspector Boutris disagreed
vehemently with FAA management’s assessment and authorization of the protracted inspections
while the planes remained in service. As detailed above, Inspector Boutris had elevated his
concerns within the FAA Southwest Airlines CMO and to senior FAA management without
success. He then took these concerns to the DOT OIG in 2018. The IG investigated and
substantiated the concerns. The IG briefed FAA management on its initial findings on October
24, 2019. That same day, the Director of FAA’s AAE, Clay Foushee, sent FAA Administrator
Steve Dickson an urgent memo summarizing the Skyline Aircraft issue and recommending that
the FAA take immediate action to either suspend or revoke the airworthiness certificates of the
forty-nine aircraft that had yet to be completely inspected.225 According to Inspector Boutris, and
supported by documents obtained by the Committee, AAE was aware of Inspector Boutris’
concerns as early as November 2018 and failed to take action for two years. According to AAE
officials, the matter was adopted by the OIG and therefore not pursued to ensure de-confliction
as a matter of standard protocol.
On October 4, 2019, Southwest Airlines provided the FAA a quarterly report as part of its
FAA-approved program to review all of the Skyline Aircraft repairs. The report explained that of
the eighty-eight Skyline Aircraft, thirty-nine had been fully reviewed; twenty-four of those
thirty-nine aircraft were found to have undocumented repairs that were non-conforming to
compliance requirements. As a result of this report and of the OIG briefing, on October 29, 2019,
223
Lewis Lazare, “Southwest Airlines Suddenly Grounds 34 Planes in Its Fleet,” Chicago Business Journal,
November 18, 2018, https://www.bizjournals.com/chicago/news/2018/11/26/southwest-airlines-suddenly-grounds-
34-planes.html
224
Email from Bobby Boutris, Concerns for the Safety of the Flying Public, October 24, 2019,
https://www.commerce.senate.gov/services/files/3DD436BB-84FB-4E2F-91D9-FE58D13EE69E
225
Memorandum from H. Clayton Foushee, Director, Office of Audit and Evaluation, AAE-I to Steve Dickson,
Administrator, Federal Aviation Administration (October 24, 2019) ,
https://www.commerce.senate.gov/services/files/489A89CB-6EE1-4906-ABFA-3875F43D6C67
89
FAA Southwest Airlines CMO Manager John Posey sent a letter to Southwest Airlines Chief
Operating Officer Michael Van de Ven expressing concern about both the speed with which
Southwest Airlines was completing the required inspections and the potential for the remaining
forty-nine aircraft to require the same immediate inspections and required repairs as necessary to
come into compliance.226 The letter gave Southwest Airlines two business days to conduct a
Safety Risk Analysis (SRA) to determine whether issues identified in the evaluation of the first
thirty-nine aircraft signal a trend that will be repeated in the remaining forty-nine.
On October 29, 2019, upon receipt of the Posey letter, Chairman Wicker spoke to FAA
Deputy Administrator Daniel Elwell to express his significant concerns.
On October 31, 2019, Southwest Airlines provided a response to John Posey’s letter. In
Southwest Airlines’ letter, the company states that they assess a low risk associated with the
remaining aircraft and any unknown major repairs.227 Committee staff spoke to several FAA
whistleblowers, engineers, and industry experts regarding this Safety Risk Analysis. To date, it is
unclear how any unknown repairs can be deemed low risk. Southwest Airlines also accelerated
the timeline for completing the remaining inspections by five months – from July 1, 2020, to
January 31, 2020. In response, the FAA communicated to Congressional committees of
jurisdiction that it believed Southwest Airlines was taking the FAA’s concerns seriously and that
revoking the airworthiness certificates of the uninspected aircraft is unnecessary.
According to two FAA whistleblowers in addition to Inspector Boutris, the initial review
of maintenance records conducted by contractors was alarmingly insufficient. These
whistleblowers indicate that maintenance and repair documents are critical to the airworthiness
inspection process, as they are used to “bridge” repairs to inspections therefore determining
airworthiness requirements. Whistleblowers claim one contractor did not even translate many of
these foreign-language documents from the original foreign carriers in order to effectively
evaluate what repairs and maintenance had or had not been completed on the airplanes.
The whistleblowers contend that as a result, Southwest Airlines knowingly relied on a
flawed document review and subsequent inspections to issue the original Airworthiness
Certificates pursuant to the DAR process. Whistleblowers conclude this is a stark example of
dangerous self-regulation promoted by the FAA’s compliance philosophy currently implemented
as the Compliance Program.
Inspector Boutris asserts that the original Airworthiness Certificates issued were invalid
based on his findings and should have been revoked when the scope of the deficiency was clearly
understood and documented as early as November 2018. Inspector Boutris had previously
elevated his concerns up his chain of command through the Southwest Airlines CMO manager,
Deputy Executive Director of the FAA Flight Standards Service, the Director of the Office of Air
226
Letter from John Posey, Manager, Southwest Airlines CMO to Michael G. Van de Ven, Chief Operating Officer,
Southwest Airlines Co. (October 29, 2019) , https://www.commerce.senate.gov/services/files/08997300-CF0B-
41F9-99EA-2B7D324A179F
227
Letter from John Posey, Manager, Southwest Airlines CMO to Michael Van de Ven, Chief Operating Officer,
Southwest Airlines (October 29, 2019) , https://www.commerce.senate.gov/services/files/08997300-CF0B-41F9-
99EA-2B7D324A179F
90
Carrier Safety Assurance, and others copied on the emails. This confirms FAA officials were
made aware of this issue at least as early as September 2018. Inspector Boutris articulated
significant risk to aviation safety but FAA management at all levels failed to support him or take
appropriate action
On October 30, 2019, Chairman Wicker sent a letter to FAA Administrator Stephen
Dickson expressing concern about the Skyline Aircraft issue at Southwest Airlines.228 Chairman
Wicker requested that Administrator Dickson provide updates on all developments related to the
Skyline Aircraft issue.
On November 8, 2019, FAA officials briefed Committee staff on the Skyline Aircraft
issue. In the briefing, FAA officials stated that they were satisfied with the Southwest Airlines
response. During this telephonic briefing, Committee staff directly asked if the sum of completed
and planned inspections was as rigorous as the inspection that is required for initial airworthiness
certification. A clear answer was not provided. Whistleblowers contend that these disparate
inspections over several years have not and will not be as thorough as a properly conducted
initial airworthiness inspection and that unknown repairs could remain hidden and uninspected.
To date, Southwest Airlines has completed the conformity process of the eight-eight
aircraft. In addition to the previously undocumented 360 major repairs that were found during
the records review, the physical inspections of the eight-eight aircraft identified 182 additional
major repairs on fifty-two aircraft, which required maintenance action to bring the aircraft into
compliance with airworthiness regulations. To summarize, the inspections conducted by
Southwest Airlines confirmed fifty-two airplanes did not conform to airworthiness requirements.
228
Letter from Roger F. Wicker, Chairman, U.S. Senate, Committee on Commerce, Science, and Transportation to
Stephen Dickson, Administrator, Federal Aviation Administration (October 30, 2019) ,
https://www.commerce.senate.gov/services/files/5EB3BEC9-BCC6-4CCB-A1CD-FE9402C52477
229
Office of Inspector General, U.S. Department of Transportation, Audit Reports, FAA has not effectively overseen
Southwest Airlines’ System for Managing Safety Risks (Feb. 11, 2020) , https://www.oig.dot.gov/library-
item/37731
230
U.S. Senate Committee on Commerce, Science, and Transportation, Fact Sheet: Southwest Airlines Skyline
Aircraft Concerns (Nov. 11, 2019) , https://www.commerce.senate.gov/2019/11/fact-sheet-southwest-airlines-
skyline-aircraft-concerns
91
“sensitive nature” of the Skyline aircraft matter. After several subsequent requests Inspector
Boutris was finally able to obtain answers to his inquiries. Inspector Boutris’ manager, Mr.
Robert Blisset, a Supervisory Principal Maintenance Inspector (PMI), appealed to local FAA
leadership but did not receive sufficient support.
Inspector Blisset contacted the Committee to express concerns that he had been cut out of
the decision making process of the CMO, despite being the local authority as the SPMI. Though
he would normally be integral to the drafting of such letters, he was only made aware of John
Posey’s October 29, 2019, letter to Southwest Airlines’ Chief Operating Officer immediately
prior to it being sent.231 He was not afforded any opportunity to provide input or approval to the
letter.
In a letter in March of 2018, Southwest Airlines advised Inspector Boutris that they will
not provide him the documents he has requested, and he must now route his request to the FAA
Aircraft Certification Office’s (ACO) engineering department. Southwest Airlines is required by
regulation to provide this information to the FAA upon request.232 Inspector Boutris had noted
that ACO does not determine whether aircraft are in compliance with airworthiness regulations,
and therefore their involvement in oversight remains unclear. The regulatory oversight of
maintenance and operations is the primary responsibility of the CMO. Inspector Boutris alleges
FAA senior leadership is improperly favoring Southwest Airlines and not holding them properly
accountable to regulations.
Inspector Boutris has also noted to the Committee that Tim Miller, a former Assistant
Division Manager at the FAA, left his FAA post in 2016 to work at Air Traffic Services (ATS).
The Committee investigation confirmed he had worked at ATS as Vice President (VP) of
Quality, Safety, Environmental, and Training before being hired by Southwest. In addition, ATS
was one of the contractors Southwest Airlines hired to perform maintenance and inspections of
the Skyline aircraft during their introduction into Southwest’s fleet. These inspections were later
found to be deficient by FAA whistleblowers and substantiated by a DOT OIG audit. In
November 2019, Mr. Miller was hired by Southwest Airlines as a Senior Director of Regulatory
Compliance and Director of Maintenance. Inspector Boutris alleges that Mr. Miller is leveraging
his continued relationship with FAA senior managers to garner favor on behalf of Southwest
Airlines. Inspector Blisset supports Inspector Boutris’ assertions and added that Mr. Miller
provides direct guidance to FAA ASIs and has indicated he will circumvent them by appealing to
managers if they don’t comply with his requests. Committee interviews of FAA staff revealed at
least one FAA Flight Standards senior manager maintains a personal relationship with Mr.
Miller. The employee, during an interview, assured Committee investigators there was no
conflict of interest.
The Committee’s investigation found that another former FAA executive, Steve Douglas,
is Vice President of Certification, Compliance, Quality and Safety at CAVOK Group, a company
contracted by Southwest Airlines to conduct the document review for the Skyline Aircraft. The
DOT OIG report determined this review to be woefully deficient. Inspector Boutris and several
other whistleblowers contend a proper document review would normally take at least several
231
Letter from John Posey, Manager, Southwest Airlines CMO to Michael G. Van de Ven, Chief Operating Officer,
Southwest Airlines Co. (October 29, 2019), https://www.commerce.senate.gov/services/files/08997300-CF0B-
41F9-99EA-2B7D324A179F
232
14 CFR 119.59 – Conducting tests and inspections, https://www.law.cornell.edu/cfr/text/14/119.59
92
weeks, and the fact that the documents weren’t even translated into English suggests they were
simply “rubber stamped.” The DOT OIG audit found that, although FAA designee certification
usually takes three to four weeks, seventy-one of the eighty-eight Skyline Aircraft were approved
by FAA designees in a single day, and many maintenance documents were never translated into
English.233 According to testimony by FAA Flight Standards Supervisor Terry Lambert to the
House Committee on Transportation and Infrastructure on April 3, 2008, in October 2007, Mr.
Douglas directed him to destroy notes related to the Committee’s oversight investigation at that
time.234 Thirteen years later, Mr. Douglas is in an executive leadership position for a company
that appears to have provided deficient and possibly fraudulent services to Southwest Airlines to
certify the airworthiness of commercial aircraft.
The events described above are extremely concerning. Inspector Boutris made initial
safety concerns about the Skyline Aircraft known to his management in December 2017. He
conveyed these concerns to AAE, the office responsible for investigating FAA whistleblower
aviation safety claims, in April 2018. Inspector Boutris made numerous subsequent notifications
to AAE and FAA senior management during 2018 and 2019. Despite Inspector Boutris’ repeated
articulation of an ongoing safety issue, AAE did not take action until October 24, 2019, when,
after being briefed on the DOT OIG’s audit findings, AAE Director Clay Foushee sent FAA
Administrator Dickson an urgent memo urging him to immediately ground the aircraft in
question.235
The FAA’s response to the DOT OIG’s audit regarding FAA oversight of Southwest
Airlines oversight found fault with the Southwest FAA Certificate Management Office’s (CMO)
oversight of Southwest Airlines. In its response, the FAA stated that when FAA leadership
became aware of these issues, appropriate actions were taken. This response by the FAA is not
accurate. Inspector Boutris informed his office manager of these issues in December 2017,
informed the director of AAE in April 2018, and after becoming frustrated with the lack of
oversight, elevated his concerns to the Director for Air Carrier Safety Assurance, Tim Miller, in
September 2018 and the FAA Manager for Air Carrier Safety Assurance, Alan Stephens, in
November 2018.236 The Committee is unaware of any FAA employee being held accountable for
the numerous management failures handling the Skyline Aircraft issue.
The Skyline Aircraft scenario described above reads almost identically to the same issues
that transpired over twelve years ago. Inspectors raised significant concerns about safety,
identified clear non-compliance, and were overruled by FAA management. This dysfunction
inserts an unnecessary risk to the flying public.
233
U.S. Department of Transportation, Office of Inspector General, FAA Has Not Effectively Overseen Southwest
Airlines’ Systems for Managing Safety Risks, AV2020019 (Washington, DC, 2020),
https://www.oig.dot.gov/sites/default/files/FAA%20Oversight%20of%20Southwest%20Airlines%20Final%20Repo
rt%5E02.11.2020.pdf.
234
U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, Critical Lapses in
Federal Aviation Administration Safety Oversight of Airlines: Abuses of Regulatory “Partnership Programs”:
Hearing Before the Committee on Transportation and Infrastructure, 110th Cong. 2d sess., April 3, 2008,
https://www.govinfo.gov/content/pkg/CHRG-110hhrg41821/pdf/CHRG-110hhrg41821.pdf.
235
Memorandum from H. Clayton Foushee, Director, Office of Audit and Evaluation, Federal Aviation
Administration, to Steve Dickson, Administrator, Federal Aviation Administration, October 24, 2019,
https://www.commerce.senate.gov/services/files/489A89CB-6EE1-4906-ABFA-3875F43D6C67.
236
Ibid.
93
Robert Blisset
Mr. Robert Blisset first spoke to Committee staff in April 2020. At the time of his disclosures to
the Committee, Inspector Blisset was the Supervisory Principal Maintenance Inspector for
Southwest Airlines at the FAA’s Southwest Airlines CMO. He took a new position as Assistant
Office Manager for the American Airlines CMO in July 2020. Inspector Blisset requested this
voluntary reassignment to escape the pressure by his managers to allow Southwest Airlines to
continue operating in a non-compliant manner. Inspector Blisset had filed a complaint with the
OSC but withdrew the complaint upon his reassignment.
Inspector Blisset independently corroborated many of the disclosures made by Inspector
Boutris and Inspector Rees. Inspector Blisset reports being sidelined by his FAA managers in
discussions directly related to maintenance compliance issues at Southwest after he raised
concerns about the Skyline Aircraft. While Inspector Blisset was directly responsible for
oversight of maintenance at Southwest Airlines, he was not aware of John Posey’s October 29,
2019, letter to Southwest Airlines Chief Operating Officer Michael Van de Ven until after it was
sent. Inspector Blisset reports that he was allowed to read the letter but not allowed to keep a
copy.
Inspector Blisset expressed concerns about the Southwest Airlines ETOP certification
process similar to the concerns expressed by Inspector Rees. Inspector Blisset reports being
excluded from the process by Alan Stephens, the FAA’s Air Carrier Safety Assurance Division
Manager. Inspector Blisset had expressed concerns related to the ETOPS process due to other
ongoing regulatory non-compliance issues with the Continuous Airworthiness Maintenance
Program (CAMP).
Similar to Inspector Boutris, Inspector Blisset made allegations that Tim Miller,
Southwest Airlines Senior Director of Regulatory Compliance and Director of Maintenance,
repeatedly went over his head to his FAA managers. Inspector Blisset was inadvertently added to
a group text message chain between Mr. Miller and FAA CMO Managers John Caldwell and
Rebecca Hoover in which Mr. Caldwell said, “If so, I would like -300 (AFS300 is the FAA’s
Aircraft Maintenance Division) in our request. They will help stamp down anything from
Rob.”237 Inspector Blisset is concerned that comments like these illustrate an inappropriately
close relationship between senior managers at Southwest and the FAA.
To further illustrate that relationship, Inspector Blisset provided numerous examples of
instances where he was pressured by his managers to be more lenient and less adversarial with
the carrier. He also shared communications with flight standards managers in which he objected
to being excluded from decision making processes for which he was responsible. Inspector
Blisset also clearly articulated his concerns to flight standards senior management citing
regulations in support of his position of not having the discretion to allow a carrier to continue
operations while not compliant. In one email he states:
I was unable to find any FAA Order, Guidance, Policy or Regulation
that provides me as an SPMI or any Principal Inspector, for that matter,
the sole authority to allow a Certificated 121 Air Carrier to deviate or be
exempted from a regulatory requirement and allow them to continue to
237
Messages on file with the Committee Staff
94
operate an aircraft that is un-airworthy from the perspective of not
meeting type design or it’s properly altered condition (14 CFT Part 21,
25, 26) or regulatory requirements associated with maintaining their
aircraft. (14 CFR Part 39, 119 and 121)
On May 28, 2019, PMI Robert Blisset sent a certified letter to Southwest Airlines
advising the carrier that their Voluntary Disclosure Reporting Program (VDRP) submissions
indicating one of their “Boeing 737-400 aircraft had overflown the requirements of
Airworthiness Directive (AD) 2007-25-03” was denied.238 Inspector Blisset noted that
Southwest kept the airplane in revenue service after the non-compliance was identified. Also
noted in the letter is the concern that additional aircraft may be affected by this AD. In the denial
Inspector Blisset stated:
Based on the requirements of FAA ORDER 8000.89 (CHG I, Dated
October I, 2016), and the VDRP Advisory Circular (AC) 00-58B, the
VDRP was not accepted on the basis that SWA failed to take immediate
action and cease the non-compliance upon discovery.
The above discrepancies appear to be a deviation to the Code of
Federal Regulations.
This AD was due to aft pressure bulkhead. Six other airplanes were found to be affected under
the same AD. These planes received AMOC to continue operations.
CMO Management
The FAA Southwest Airlines CMO has undergone numerous management changes over
the past fifteen years. Upon review of documents and statements provided by whistleblowers and
other FAA employee’s leadership has changed at least four times since 2007. Most recently in
June 2019, three members of management were removed and reassigned in the midst of
numerous whistleblower complaints and ongoing investigations and audits by the FAA, DOT
OIG, OSC, and the Committee. During FAA employee staff interviews conducted by
Committee investigators, senior managers in flight standards confirmed none of the managers
were disciplined in this reassignment but rather they were reassigned as a matter of management
discretion.
Whistleblowers advised that the new managers lacked sufficient technical and
management experience to lead the troubled office. Numerous whistleblowers within the
Southwest CMO and throughout the FAA asserted to Committee staff that the individuals were
“hand-picked” by Flight Standards senior management to smooth things out with Southwest and
restore a “go along to get along,” culture. This assertion appears to be supported by the conduct
of the CMO office manager (John Posey) in his letter to Southwest in October of 2019 regarding
“Airworthiness Directives; Airbus Model A310 Series Airplanes, Final Rule,” Federal Register 72, no. 236
238
95
the Skyline Aircraft.239 Regulatory compliance and a recommendation to immediately ground the
Skyline Aircraft by Director of Audit and Evaluation, Clay Foushee, was completely ignored.
In June 2019, following the removal of the FAA Southwest Airlines CMO management
staff, several temporary “acting” managers were assigned to the CMO. According to Inspector
Boutris he was admonished by one of the new acting managers about a ninety day clock on
enforcement violations related to this open case on the Skyline Aircraft. Inspector Boutris
advised the manager that due to Southwest’s continued effort on a comprehensive solution the
case could remain open. Several days later, Inspector Boutris noticed files related to this
enforcement case being printed on the office printer. He learned the new manager, despite his
perceived understanding from the discussion a few days prior, was taking it upon his/her self to
close the enforcement action. Inspector Boutris now understands that the acting manager had
taken the case to regional and HQ legal who advised he/she had discretion to close or leave the
action open. The acting manager directed Inspector Boutris to close the case despite his
persistent objection. Inspector Boutris closed the case as instructed.
According to Inspector Boutris, the acting manager described in the events above had
been selected without competition by the Flight Standards Division Manager. Inspector Boutris
asserts that consistent with the other acting managers, this manager lacked qualifications or
experience in airframe structure or related commercial carrier airworthiness inspections.
Inspector Boutris, who had blown the whistle on very similar issues, states that nothing has
changed in twelve years with regards to the oversight of Southwest Airlines or the FAA’s
complicity in letting them operate as they wish instead of complying with regulations.
In March 2020, a whistleblower with direct knowledge of the FAA promotion process
alleged to the Committee that improper promotion practices were used to install at least one of
the new managers at the FAA Southwest CMO office. In this case the person selected for the
promotion had only six years’ experience in the FAA. However, they were selected over more
senior and more qualified applicants to lead the most challenging and troubled CMO in the
country according to the whistleblower. The selection appears to have been made in order to
continue senior management’s non-compliant ineffective oversight of Southwest Airlines.
Inspector Boutris, Inspector Blisset, Inspector Rees, Inspector Minnehan, and several other
whistleblowers all concur with this assertion.
In a more recent personnel action, CMO management selected an individual to serve as
Acting PMI after the departure of whistleblower Robert Blisset from the position in July 2020.
Upon arrival to the new acting position, ASIs learned the new Acting PMI was from a general
aviation background and lacked any airframe structure or related commercial carrier
airworthiness inspections experience traditionally required for this position. Further, CMO
employees learned the individual selected was the spouse of a senior official at Air Traffic
Service (ATS). ATS is a contract company that conducted much of the deficient review and
inspections on the Skyline Aircraft. ATS is also where Mr. Tim Miller, former FAA official and
current Southwest Airlines Senior Director of Regulatory Compliance and Director of
239
Memorandum from H. Clayton Foushee, Director, Office of Audit and Evaluation, Federal Aviation
Administration, to Steve Dickson, Administrator, Federal Aviation Administration, October 24, 2019,
https://www.commerce.senate.gov/services/files/489A89CB-6EE1-4906-ABFA-3875F43D6C67.
96
Maintenance, worked immediately prior to arriving at Southwest Airlines in December, 2019.
Committee interviews revealed that Mr. Tim Miller maintains a personal relationship with a
senior Flight Standards manager with responsibility over the Southwest CMO. A CMO
employee suspecting an ethics violation filed a complaint about the potential improper selection
of the temporary SPMI. Subsequently, during an all hands meeting with CMO staff, the Office
Manager and an assistant office manager verbally identified the employee who had made the
complaint. On September 2, 2020 Committee staff requested documentation related to this event
and have yet to receive a response. If the process follows the many others Committee staff has
reviewed, the investigation could be assigned to the line of business. In this case the
investigation may be assigned by a senior manager in the line of business who is personal friends
with a senior Southwest official who worked at ATS with the selected Acting PMI’s spouse.
In DOT OIG audit report released in February 2020, the FAA adopted several
recommendations. One of the recommendations included remedial training on voluntary
disclosure programs and related compliance. During a training presentation, FAA staff from
presented instruction on VDRP.240 The instruction affirmed that once non-compliance is
discovered operations must stop. Once operations have ceased, a VDRP can be filed and an
AMOC can be considered and approved. Operations are only permitted to resume after the
AMOC is approved and received. Flight Standards Division Manager (Alan Stephens)
interjected and suggested ASI had discretion in this regard. Stephens asserted the ASI has
latitude to determine if the non-compliance posed a safety risk. If no safety risk was determined
the operator could continue flights. Stephens suggested retraining of inspectors in regards to
discretion versus following the clear policy and regulations. The Division Manager was
supported in his position by a Deputy Director of Air Carrier Safety Assurance who was also in
attendance. Debate erupted on this issue and the instructor leading the course corrected Mr.
Stephens, clarifying no such discretion exists and that an AMOC cannot be granted retroactively
especially when operations did not cease after discovering non-compliance. This event was
attended and witnessed by staff from AAE to witness adoption of DOT OIG recommendations
from its Southwest Airlines report. These events as described support a consistent assertion by
front line inspectors that flight standards management either lacks the technical knowledge
related to aviation safety oversight or choose to ignore it. In either event it is a stark illustration
of the division between FAA management and inspectors.
More than twelve years after the 2008 congressional oversight hearings, this report
details numerous disclosures detailing safety concerns by multiple whistleblowers at the
Southwest Airlines CMO. These concerns, as they were in 2008, are supported by DOT OIG
findings which include overflying of Airworthiness Directives and putting millions of
commercial passengers at risk.
240
U.S. Department of Transportation, Federal Aviation Administration, Voluntary Disclosure Reporting Program,
advisory circular 00-58B, (Washington, DC, 2009),
https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_00-58B.pdf.
97
Finding: The FAA repeatedly permitted Southwest Airlines to continue operating dozens of
aircraft in an unknown airworthiness condition for several years. These flights put millions of
passengers at risk.
Finding: Southwest Airlines successfully exerts improper influence on the FAA to gain
favorable treatment related to regulatory compliance and voluntary reporting programs.
Finding: FAA appears to select managers in the Southwest Airlines Certificate Management
Office (CMO) who lack relevant experience and do not provide effective regulatory
compliance or enforcement.
Finding: FAA managers undermine Aviation Safety Inspectors (ASI) and in some cases
retaliate against them for conducting diligent oversight and making protected safety
disclosures.
Finding: The FAA has failed to hold anyone accountable for lapses in oversight of Southwest
Airlines.
Finding: FAA continues to retaliate against whistleblowers instead of welcoming their
disclosures in the interest of safety.
98
VIII. Conclusion
The FAA is responsible for the regulation and oversight of the U.S. aviation industry with
safety as the primary goal. The Committee’s twenty month investigation incorporated
information from fifty-seven whistleblowers, thousands of pages of documents, and numerous
interviews. Committee investigators discovered numerous systemic deficiencies in FAA
oversight. These deficiencies included ineffective or complete lack of oversight, resulting in
unnecessary risk to the flying public. In many cases FAA management appears to be aware, and
in some cases complicit in thwarting the very oversight they are charged with directing and
supervising. In the most alarming cases, whistleblowers have warned of tragedies before they
occur only to be retaliated against by managers. Unfortunately, much of what has been detailed
in this report has been well known and reported on for decades. Despite this awareness, the FAA
has failed to correct course and solidify an effective safety culture.
A recent survey completed by the FAA largely confirms what whistleblowers alleged and
Committee investigators confirmed.241 The fear of retaliation in the FAA persists. This fear of
employees charged with oversight to ensure safety clearly presents an unnecessary risk to the
flying public.
There is continued absence of updated policy, procedures, the certification of personnel,
and best practices related to whistleblower retaliation investigations despite the creation of AAE
in 2012.242 Based on evidence reviewed by the Committee, the FAA appears to move employees
into different positions rather than holding people accountable for their actions.
FAA policies appear to have reduced effective oversight by abdicating responsibilities to
the carriers. These actions within the administration have not gone unnoticed. It is imperative
that the FAA is proactive to ensure that their policies, procedures, and certifications are
consistent, followed, and enforced in order to keep the American public and travelers’ safe at all
times.
On September 10, 2020, the Senate Committee on Commerce, Science, and
Transportation (CST) introduced the FAA Accountability Enhancement Act, S.4565. On
November 18, 2020, the Act was added to the Aircraft Safety and Certification Reform Act of
2020, S. 3969, and was voted favorably out of Committee. In its final form, the Act would
establish a Whistleblower Ombudsman within the FAA, rename the Office of Audit and
Evaluation as the Office of Whistleblower Protection and Aviation Safety Investigations, and
enable the newly renamed office to investigate claims of whistleblower retaliation. These key
provisions of the FAA Accountability Enhancement Act may be included in the Omnibus
legislative vehicle, which is expected to pass the House and Senate in the coming days. This
legislation is representative of bi-partisan efforts supported by contributions of courageous
241
U.S. Department of Transportation, Federal Aviation Administration, Aviation Safety Organization Safety
Culture Survey Findings, February 28, 2020 (unpublished report, on file with the U.S. Senate Commerce, Science,
and Transportation Committee).
242
FAA Modernization and Reform Act of 2012, Public Law 112-95 (2012),
https://www.congress.gov/112/plaws/publ95/PLAW-112publ95.pdf.
99
whistleblowers and dedicated FAA employees. Chairman Wicker believes this legislation would
provide for significant enhancements to accountability, aviation safety, and whistleblower
protection.
100
IX. Recommendations
The Committee will request the Department of Transportation Office of Inspector
General (DOT OIG) conduct a thorough review of the implementation of the FAA
compliance philosophy and assess its effectiveness.
Require AAE to investigate complaints that it receives or that are referred to, and clarifies
that the office receives and investigates complaints and information concerning aviation
safety and whistleblower retaliation.
Allow AAE to make recommendations for any disciplinary action arising from any of the
office’s investigations.
Direct an Office of the Ombudsman to educate employees about whistleblower rights and
prohibitions on retaliation. It would serve as an independent resource for agency
employees to discuss their rights and remedies for any allegations of misconduct.
Conduct outreach and training to mitigate misconduct and promote timely and
appropriate processing of protected disclosures and allegations of reprisal.
Continue improved engagement between Congress and the FAA. Furthermore, finding a
way to be more responsive to Congressional requests and embrace oversight as a
constructive means to improving accountability and aviation safety, therefore, saving
lives.
FAA should support legislative reform by implementing law completely while fulfilling
the intent of Congress.
101