The Special Counsel

The President

U.S. OFFICE OF SPECIAL COUNSEL 1730 M Street, N.W., Suite 300 Washington, D.C. 20036·4505

June 9, 2017

The White House Washington, D.C. 20500

Re: OSC File Nos. DI-11-2238 and DI-11-2709

Dear Mr. President:

On May 8, 2012, pursuant to my duties as Special Counsel, I transmitted to President Obama and Congress seven reports prepared by the Department of Transportation (DOT) based on disclosures regarding various safety lapses at major airports and Federal Aviation Administration (FAA) facilities. I consolidated those reports because of their proximity in time and to highlight FAA's pattern of insufficient responses to safety concerns. As noted in my May 8 letter, I requested that DOT provide updates on the corrective actions outlined in the reports in several of those matters, including the above-noted companion cases.

In these cases, Aviation Safety Inspectors Mark Lund and Daniel Mirau alleged that the FAA failed to provide proper oversight of Delta Air Lines, Inc. (Delta) and failed to address the airline's non-compliance with FAA Airworthiness Directives (ADs) 1 and Federal Aviation Regulations · (FARs):Mr~ Lt.ind and Mr. Mirau alleged that FAA employees in the Delta Certificate Management Offices (CMOs) in Atlanta, Georgia, and Bfoonnngton, Minnesota, failed to ensure that Delta was in full compliance with the ADs and F ARs governing the fuel tank system and electrical wiring interconnection system (EWIS) maintenance programs. They alleged that the airline's non-compliance presented a :substantial and specific danger to public safety through the use and operation of potentially unsafe aircraft. I determined that DOT' s investigation into these allegations was reasonable, but requested updates on corrective actions.

1Airworthiness Directives (ADs) are legally enforceable rules that apply to aircraft and aircraft engines, propellers and appliances. FAA issues ADs to address an unsafe condition that exists in a product or is likely to exist or develop in other products of the same type design. ADs specify the inspections that must be carried out, conditions and limitations that carriei:s must comply with, and any actions carriers must take to resolve the unsafe condition. A carrier who operates an aircraft that does not meet the requirements of an applicable AD violates 14 C.F.R. § 39.7. See 14 C.F.R. Part 39.

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I

I received updates from DOT regarding the corrective actions taken in the matters in 2012, 2013, and 2014. DOT's updates and responses to supplemental information requests from OSC reflect that the corrective actions were taken.

In 2015, Mr. Lund reported continuing concerns with FAA's oversight of Delta's EWIS program, particularly with respect to use of the Voluntary Disclosure Reporting Program (VDRP). Mr. Lund cited numerous instances of non-compliance as indicative of the agency's failure to properly oversee Delta and enforce EWIS regulations or address systemic safety concerns. Given these continued concerns, OSC requested another update from DOT.

In the agency's October 6 response, DOT explained the Delta CMO does not accept repeat systemic VDRP submissions. Recognizing that F AA's safety system is largely based and dependent on aircraft certificate holders' voluntary compliance with regulations, FAA implemented a new compliance philosophy in 2015 using non­enforcement mechanisms, where appropriate, to correct unintentional non-compliance that results from factors such as flawed systems and procedures, simple mistakes, or lack of understanding. Urider this approach, FAA does not pursue: enforcement actions when certificate holders voluntarily report regulatory violations and take corrective action as well as action to ensure that the violation does not recur. FAA's rationale for this policy is that sharing of safety information and a eooperative approach to solving problems will enhance safety because certificate holders are more reluctant to report information that would result in enforcement actions. FAA uses enforcement wheri needed, but the goal of the compliance philosophy is to obtain compliance quickly and eliminate safety risk.

The agency explained that with every VDRP disclosure, the CMO works with Delta to identify the root cause of the problem and develop a comprehensive solution. The agency explained further that the number of disclosures, 48 airworthiness and 14 operations related, is indicative of the information being shared by the airline with the agency under FAA's compliance philosophy. The process for closing out a VDRP case includes a follow-up audit by Delta to ensure the aCtion taken corrects the non­compliance and FAA provides verification that corrective actions have been tfil<:en.

DOT provided information on each of the incidents identified by Mr. Lund and addressed his concern that the EWIS program is faulty. DOT reported that there have been approximately 20 EWIS incidents since 2011 and noted that this number does not demonstrate a fa_iling program. For context, the agency pointed to the size and scope of Delta noting that the airline has approximately 800 aircraft arid operates 2,400 flights per day. :

According to the agency, the Delta CMO has also held a series of avionics meetings since February 2016 and discussed EWIS issues at each meeting. In the June 2016 meeting, the discussion included a review of all EWIS-related findings, enforc.ements and

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occurrences for the last two years. The agency reported that the data did not suggest any adverse trends. The update further stated that in one VDRP case, the comprehensive review of the issues resuited ~n a major revision of the EWIS program, including updates to task card standards and required approvals, and the addition' of four data collection tools to the SAS Certificate Hold Assessment Tool. Additionally, the Delta CMO focused on EWIS performance assessments to monitor inspections. DOT reported that a Delta EWIS safety program analysis completed in July 2016 concluded the program was performing at an acceptable level. Further, a September 2016 meeting identified four key areas for the EWTS program to focus on moving forward to address any concerns that the EWIS program is not effective.

Mr. Lund provided detailed comments on the agency's response, which are enclosed. 2 Mr. Lund believes that FAA' s present compliance philosophy has degraded public safety. In addition, he contends that the failure to pursue enforcement actions through civil penalties has resulted in a gross loss of funds to the federal government. Mr. Lund also details his concerns that American jobs are being lost as a result of F AA's certification of foreign repair stations. According to Mr. Lund,: airlines petition FAA for foreign repair stations based·on a false need. He maintains that the motivation for the airlines to use foreign repair stations is to' secure repairs at a much lower eost than a{ FAA certified repair stations in the U.S. This emphasis on foreign repairs diverts employment·opportunities from qualified American labor:

Mr. Lund describes previous aviation tragedies, incl~ding TWA flight 800, to emphasize the importance of compliance with safety regulations and'his concerns regarding FAA management's close relationship with the airlines for which they provide oversight. He also describes the electronic database systems that FAA has used since the 1980s and believes the present SAS system is degrading public safety; he notes that over the years, FAA management has spent an enormous amotint of money developing these systems with little benefit.

The U.S. Office of Special Counsel (OSC) is authorized by law to receive disclosures of information from federal employees alleging violations of law, nile, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a s11bstantial and specific danger to p'ublic health and safety~ 5 U.S.C. § 1213(a) and (b). OSC does not have the authority to investigate a whistleblower's disclosure; rather, if the Special Counsel determines that there is a substantial likelihood that one of the aforementioned conditions exists, she is required to advise the appropriate agency head of her determination, and the agency head is required to conduct an investig~tion of the allegations and submit a written report. 5 U.S.C. § ·12l3(c).

2Some of the attachnients to Mr. Lund's comments are not induded because they fall under 49 U.S.C. § 40123 and 14 C.F.R. 193. The documents will be provided to you, and Congress; upon request.

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As stated in my letter of May 8, 2012, I am charged with providing you and Congress a report on the resolution of disclosures. Here, it appears that the agency initiated corrective actions, provided information on its compliance approach, and completed an additional review of the whistleblowers' continued concerns. I recognize Mr. L~d's disagreement with F AA's compliance policy and philosophy. Based on the inforniation provided, I am satisfied with the agency's response in this matter. Nevertheless, I urge FAA to undertake continued review of the compliance enforcement philosophy to assess its efficacy and ensure that it provides the oversight.of aircraft certificate holders necessary to safeguard air travel. OSC does not have a formal continuous oversight role; any further oversight rests with you and Congress.

As required by 5 U.S.C. § 1213(e)(3), I have sent copies ofDOT's updates and the whistleblower comments to the Chairman and Ranking Member of the Senate Committee on Commerce, Science and Transportation and to the Chairman and Ranking Member of the House Committee on Transportation and Infrastructure. I have also filed a copy of this letter, the agency updates and whistleblower comments in OSC's public file, which is available af www.osc.gov. These matters are closed.

Respectfully,

Carolyn N. Lerner

Enclosures