Federal authorities began exploring a criminal investigation of how Boeing Co.’s 737 Max was certified to fly passengers before the latest crash in Ethiopia involving the new jet, according to people familiar with the probe.
The investigation was prompted by information obtained after a Lion Air 737 Max 8 crashed Oct. 29, killing 189 people, shortly after takeoff from Jakarta, Indonesia, said one person who wasn’t authorized to speak about the investigation and asked not to be named because of it.
The investigation has taken on new urgency after the March 10 crash of an Ethiopian Airlines 737 Max 8 near Addis Ababa that killed 157 people.
It is being conducted in part by the Transportation Department’s Inspector General’s office, which conducts audits and criminal investigations in conjunction with the Justice Department.
The latest crash prompted most of the world to ground Boeing’s 737 Max 8 aircraft. After days of resistance by the Federal Aviation Administration, President Donald Trump last Wednesday announced the United States would join the ban, affecting about 70 of the planes.
The Justice Department is in the process of gathering information about the development of the 737 Max, including through a grand jury subpoena, according to a person familiar with the matter. The Justice Department’s Criminal Division, which is overseeing the effort, declined to comment.
The grand jury’s involvement earlier was reported by the Wall Street Journal. Separately, a Seattle Times investigation published Sunday found that U.S. regulators delegated much of the plane’s safety assessment to Boeing itself, and that the company in turn delivered an analysis containing crucial flaws.
Both Boeing and the U.S. Transportation Department declined to comment about the investigation.
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Ethiopia’s transport minister said Sunday that flight-data recorders showed “clear similarities” between the crashes of that plane and Lion Air Flight 610.
A possible criminal investigation during an aircraft crash investigation is highly unusual.
FAA employees warned seven years ago that Boeing had too much sway over safety approvals of new aircraft, prompting an investigation by Transportation Department auditors who confirmed the agency hadn’t done enough to “hold Boeing accountable.”
In recent years, the FAA has shifted even more authority over the approval of new aircraft to the manufacturer, even allowing Boeing to choose many of the federal personnel who oversee tests and vouch for safety. Just in the past few months, Congress expanded the outsourcing arrangement further.
“It raises for me the question of whether the agency is properly funded, properly staffed and whether there has been enough independent oversight,” said Jim Hall, who was chairman of the National Transportation Safety Board from 1994 to 2001 and now is an aviation-safety consultant.
At least a portion of the flight-control software suspected in the 737 Max crashes was certified by one or more Boeing employees who worked in the outsourcing arrangement, according to one person familiar with the work.
While people like Hall raise concerns about the potential for a conflict of interest, the FAA has been designating authority for certification work and other tasks to employees of companies it regulates for decades.
The agency doesn’t have the budget to do every test, and “the use of designees is absolutely necessary,” said Steve Wallace, the former head of accident investigations at the FAA. “For the most part, it works extremely well. There is a very high degree of integrity in the system.”
In a statement, the FAA said its “aircraft certification processes are well established and have consistently produced safe aircraft designs,” adding that the “737 Max certification program followed the FAA’s standard certification process.”
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Much of the attention in both crashes has focused on a flight-control system that can automatically push a plane into a catastrophic nose dive if it malfunctions and pilots don’t react properly.
In one of the most detailed descriptions yet of the relationship between Boeing and the FAA during the 737 Max’s certification, the Seattle Times quoted unnamed engineers who said the plane maker had understated the power of the flight-control software in a System Safety Analysis submitted to the FAA. The newspaper said the analysis also failed to account for how the system could reset itself each time a pilot responded — in essence, ratcheting the horizontal stabilizer into a dive position.
Boeing said there were “some significant mischaracterizations” in the engineers’ comments to the newspaper.