WASHINGTON – Federal prosecutors and Department of Transportation officials are scrutinizing the development of Boeing’s 737 MAX jetliners, according to people familiar with the matter, unusual inquiries that come amid probes of regulators’ safety approvals of the new plane.
A grand jury in Washington, DC, issued a broad subpoena dated March 11 to at least one person involved in the 737 MAX’s development, seeking related documents, including correspondence, emails and other messages, one of these people said.
The subpoena, with a prosecutor from the Justice Department’s criminal division listed as a contact, sought documents to be handed over later this month.
It wasn’t immediately clear whether the Justice Department’s probe is related to scrutiny of the Federal Aviation Administration by the DOT inspector general’s office, reported on Sunday by The Wall Street Journal and that focuses on a safety system that has been implicated in the Oct. 29 Lion Air crash that killed 189 people, according to a government official briefed on its status.
Aviation authorities are looking into whether the anti-stall system may have played a role in last week’s Ethiopian Airlines crash, which killed all 157 people on board.
The subpoena was sent a day after the Ethiopian Airlines crash a week ago.
Representatives of the DOT and Justice Department couldn’t immediately be reached late Sunday.
The inspector general’s inquiry focuses on ensuring relevant documents and computer files are retained, according to the government official familiar with the matter.
A Boeing spokesman declined to comment, saying the Chicago-based company wouldn’t respond to questions concerning legal matters or governmental inquiries.
The Justice Department probe involves a prosecutor in the fraud section of the department’s criminal division, a unit that has brought cases against well-known manufacturers over safety issues, including Takata Corp.
In the US, it is highly unusual for federal prosecutors to investigate details of regulatory approval of commercial aircraft designs, or to use a criminal probe to delve into dealings between the FAA and the largest aircraft manufacturer the agency oversees.
Probes of airliner programs or alleged lapses in federal safety oversight typically are handled as civil cases, often by the DOT inspector general.
The inspector general, however, does have the authority to make criminal referrals to federal prosecutors and has its own special agents.
Repeatedly over the years, US aviation companies and airline officials have been sharply critical of foreign governments, including France, South Korea and others, for conducting criminal probes of some plane makers, their executives and in some cases, even individual pilots, after high-profile or fatal crashes.
The FAA’s current enforcement policy stresses enhanced cooperation with domestic airlines and manufacturers – featuring voluntary sharing of important safety data – instead of seeking fines or imposing other punishment.
The US government scrutiny comes as Ethiopia’s transport minister, Dagmawit Moges, said there were “clear similarities” between the two crashes.
US officials cautioned that it was too early to draw conclusions because data from the black boxes of the Ethiopian Airlines plane still need to be analyzed.
The two crashes have sparked the biggest crisis Boeing has faced in about two decades, threatening sales of a plane model that has been the aircraft giant’s most stable revenue source and potentially making it more time consuming and difficult to get future aircraft designs certified as safe to fly.
The Transportation Department’s inquiry was launched in the wake of the Lion Air accident and is being conducted by its inspector general, which has warned two FAA offices to safeguard computer files, according to people familiar with the matter.
The internal watchdog is seeking to determine whether the agency used appropriate design standards and engineering analyses in certifying the anti-stall system, known as MCAS.
The FAA said Sunday that the 737 MAX, which entered service in 2017, was approved to carry passengers as part of the agency’s “standard certification process,” including design analyses; ground and flight tests; maintenance requirements; and cooperation with other civil aviation authorities. Agency officials in the past have declined to comment on various decisions regarding specific systems. Sunday’s statement said the agency’s “certification processes are well established and have consistently produced safe aircraft.”
Earlier, a Boeing spokesman said: “The 737 MAX was certified in accordance with the identical FAA requirements and processes that have governed certification of all previous new airplanes and derivatives.
The FAA considered the final configuration and operating parameters of MCAS during MAX certification, and concluded that it met all certification and regulatory requirements.”
Boeing Chief Executive Dennis Muilenburg said in a statement Sunday the company continues to support the Ethiopian investigation, “and is working with the authorities to evaluate new information as it becomes available.”
Muilenburg added: “As part of our standard practice following an accident, we examine our aircraft design and operation, and when appropriate, institute product updates to further improve safety.”
A Department of Transportation spokesman declined to comment about the investigation by the inspector general. Representatives of the office couldn’t be reached on Sunday.
Governments worldwide have grounded the MAX, an updated version of the decades-old 737, while investigators and engineers seek clues.
The Department of Transportation inquiry, which hasn’t been previously reported, focuses on a Seattle-area FAA office that certifies the safety of brand new aircraft models and subsequent versions, as well as a separate office in the same region in charge of mandating training requirements and signing off on fleetwide training programs, people familiar with the matter said.
Files and documents covered by the directive also pertain to the FAA’s decision that extra flight-simulator training on the automated system wouldn’t be required for pilots transitioning from older models, according to people familiar with the matter.
Officials in those offices have been told not to delete any emails, reports or internal messages pertaining to those topics, people familiar with the matter said, adding that the probe also is scrutinizing communication between the FAA and Boeing.
The Department of Transportation inquiry is casting a wide net for documents about potential agency lapses just as House and Senate committees prepare for public hearings in the coming weeks that are expected to grill the FAA’s senior leadership on the same topics.
The DOT inquiry is likely to raise more questions about how Boeing designed the airliner, how pilots are trained to fly it and the decisions the FAA took approving the model.
The result could be changed to how the FAA certifies aircraft models, particularly giving more scrutiny to design changes from earlier models.
The FAA is moving to require more extensive training on the anti-stall system than Boeing had been championing, according to people familiar with the deliberations.
The more-robust instruction, consisting of pilots engaging in self-guided instruction on a laptop computer, would include more details and require more time to complete than reading a handout, according to people familiar with the matter.
Boeing has been advocating comparatively limited training, the people said, consisting of new, written materials aviators would receive explaining operation of the automated stall-prevention feature – and how to respond if it malfunctions.
The investigation is the latest problem for a plane that was born in a different kind of corporate emergency, according to industry officials and engineers close to the company: an urgent need in 2011 to create a relatively small, fuel-efficient jetliner that could compete with a model from rival Airbus SE that had swiftly gained traction among customers.
A person familiar with Boeing’s development of the plane said the company didn’t rush the project, which had been on the drawing board for some time then.
To meet the marketing and financial imperatives of speedy FAA certification, Boeing needed to build a plane that would handle basically the same as earlier versions of its 737.
From the outset, that was a regulatory requirement in order to obtain certification as a so-called derivative model, which would translate into a significantly faster approval process and traditionally less FAA scrutiny of certain systems.
The automated anti-stall system, called the maneuvering characteristics augmentation system, initially was intended to assist cockpit crews in the unlikely event that high-altitude, high-speed maneuvers suddenly pushed up the nose more than aviators anticipated.
The goal was to make cockpit controls behave the same as they did in previous models, even though behind the scenes the automated system was doing much of the work.
But as the engineering effort and flight tests progressed, according to industry and FAA officials familiar with the process, the Boeing team saw the same feature as a potentially important safety net for a different hazard highlighted in previous crashes: lower-altitude stalls in which startled pilots mistakenly pulled back on the controls and sometimes crashed aircraft.
FAA officials also recognized the potential benefits and approved the system as part of the overall MAX approval.