MAX oppdatering - Curt Lewis

Former Boeing official subpoenaed in 737 MAX probe won't turn over documents, citing Fifth Amendment protection The final assembly area for the 737 MAX airplanes outside the Boeing factory in Renton in May. (Mike Siegel / The Seattle Times) A former Boeing official who played a key role in the development of the 737 MAX has refused to provide documents sought by federal prosecutors investigating two fatal crashes of the jetliner, citing his Fifth Amendment right against self-incrimination, according to a person familiar with the matter. Mark Forkner, Boeing's chief technical pilot on the MAX project, invoked the privilege in response to a grand jury subpoena issued by U.S. Justice Department prosecutors looking into the design and certification of the plane, the person said. Invoking the Fifth to avoid testifying, while a legal right, is sometimes interpreted as an admission of guilt. Its use to resist a subpoena for documents is less common and may only imply a dance between prosecutors and defense attorneys, legal experts say. Forkner, now a first officer for Southwest Airlines, referred questions to his attorney when reached by phone. His attorney, David Gerger, of Houston, did not respond to inquiries. Justice Department spokesman Peter Carr declined to comment. Boeing also declined to comment. Prosecutors in the Justice Department's Washington, D.C., fraud section are conducting a wide-ranging investigation into the crashes that occurred Oct. 29 off Indonesia, and March 10 in Ethiopia, killing 346 people and leading to worldwide grounding of the plane. Their investigation includes the role of a new flight-safety control system called the Maneuvering Characteristics Augmentation System (MCAS), which has been implicated in the crashes. Forkner, who worked at Boeing from 2011 to 2018, according to his LinkedIn profile, was frequently anxious about the deadlines and pressures faced in the MAX program, going to some of his peers in the piloting world for help, a person who worked on the project previously told The Seattle Times, speaking on condition of anonymity. The MCAS system, designed to move a powerful control surface at the tail to push the airplane's nose down in certain rare situations, played a critical role in the crashes when the planes nose-dived out of the sky. During the certification process, Forkner suggested to the Federal Aviation Administration (FAA) that MCAS not be included in the pilot manual, according to previous Seattle Times reporting. The FAA, after internal deliberations, agreed to keep MCAS out of the manual, reasoning that MCAS was software that operates in the background as part of the flight-control system, according to an official familiar with the discussions. In addition, Boeing won the FAA's approval to give pilots just an hour of training through an iPad about the differences between the MAX and the previous 737 generation. MCAS was not mentioned. Boeing has said MCAS was only one link in a chain of events, and that MCAS was designed according to the standard procedures it has used for years. "The 737 MAX was certified in accordance with the identical FAA requirements and processes that have governed certification of previous new airplanes and derivatives," the company said in a previous statement. Gerger, in an earlier interview, said, "Mark never dreamed anything like this could happen. He put safety first." It isn't clear when Forkner received the subpoena or if the Justice Department, as part of the secret grand jury proceedings, has asked a judge to compel disclosure of the documents. Also unknown is whether Forkner and the Justice Department have discussed terms under which he might surrender the documents, and whether subpoenas have been issued to other individuals for records. While the Fifth Amendment protects people from testifying against themselves, it "usually does not apply to being required to produce documents because producing a document is not the same as being required to testify," said University of Washington law professor Jeffrey Feldman. But there are exceptions that allow the privilege to be asserted where "the mere act of producing the document" may be seen as an incriminating act, Feldman said. Paul Rothstein, a Georgetown University law professor, said documents may show a person "has them, knows about them or admits they exist." "This information can often be somewhat incriminating of that person and thus covered by his Fifth Amendment privilege against self-incrimination," Rothstein said. Some courts have held that broad document requests require the person to "use his or her mental processes to interpret and respond to the subpoena, and the production itself could be viewed as testimonial," said Peter Joy, a Washington University law professor. In Forkner's case, Feldman said, it could turn on the type of documents. "Are these the employee's personal documents? His diary or personal emails? Or are they Boeing's documents?" Forkner could ask for immunity from use of the information in the documents, or prosecutors could offer it, the experts said. "Such immunity means the revealed information cannot be used in any way in any investigation of him or any criminal prosecution of him," Rothstein said, noting that it is not a blanket immunity from investigation or prosecution based on evidence obtained elsewhere. It is "just an immunity from use of this particular evidence or information," he said. But prosecutors can independently seek other evidence, Feldman said. He said if there is a plausible assertion of the privilege, it would "not be unusual to see the government offer" of immunity. "It could just be the kind of waltz you often see in cases like this, by which individuals who are concerned that they may get swept up in a criminal matter try and obtain some protection and assurances to lower their risk," Feldman said. "Or it could be much more significant both for the individual or the company."

EU regulator pushes Boeing on Max fixes Agency airs concerns even as FAA weighs jet's return SEATTLE -- Europe's aviation safety agency, which is conducting its own independent review of Boeing's grounded 737 Max, is not satisfied with a key detail of Boeing's fix to the jet. It wants Boeing to do more to improve the integrity of the sensors that failed in the two fatal crashes in Indonesia and Ethiopia, killing 346 people. And it's demanding that Boeing demonstrate in flight tests the stability of the Max during extreme maneuvers, not only with Boeing's newly updated flight-control system but also with that system switched off. These were among the disclosures in a presentation last week to the European Parliament by Patrick Ky, executive director of the European Union Aviation Safety Agency. Ky listed what appear to be more stringent agency requirements than those of its U.S. counterpart, the Federal Aviation Administration. Boeing has publicly said it hopes for FAA clearance for the Max in October so that it can return to passenger service in the U.S. this year. Typically, overseas regulators follow the FAA's lead. But after the Max crashes revealed shortcomings in the FAA's certification process, that's no longer certain. One of Ky's slides cited a letter the EU agency sent to the FAA on April 1, less than three weeks after the Max was grounded, that laid out four conditions for it to allow the Max to return to service. The first condition stipulated is, "Design changes proposed by Boeing are [EU-approved]." The second is that the EU agency complete an "additional and broader independent review" of the aircraft, beyond the specific design changes to the flight-control system that went haywire on the crashed flights. If the FAA moves ahead and clears the Max to fly while the EU agency holds off until later, it would create an unprecedented divergence in worldwide regulation that would gravely complicate the schedules of many airlines flying internationally. FAA approval would apply only to U.S. airlines flying domestically. European airlines flying the Max, such as Norwegian Air, require clearance from the EU agency. And it will put Boeing in a very awkward position if the FAA says the Max is safe to fly while others hold back approval. FLAWED SYSTEM Both Max crashes were initiated by faulty sensors that measure the plane's angle of attack, the angle between the oncoming airflow and the wing. That fault then activated a new flight-control system -- a piece of software known as the maneuvering characteristics augmentation system -- that on each of the crashed flights repeatedly pushed the nose of the jet down. Although Boeing has updated flight-control software so that it now takes input from both angle-of-attack sensors on the Max instead of only one, and won't operate if they disagree, Ky indicated his agency finds this insufficient. One of his slides states that while Boeing's proposal has improved the angle-of-attack system, there is "still no appropriate response to Angle of Attack integrity issues." On Thursday, the agency elaborated a little in an email: "We can confirm that [the EU aviation safety agency] is not yet satisfied with the proposed solution by Boeing on the improved architecture and logics for the [angle-of-attack] system," the agency wrote. "We are following a methodical approach to assess the overall safety of the flight control and associated functions of the aircraft, as well as the pilot interaction with the systems, to take account of the human factors involved." And the agency wants stringent flight tests that prove the Max's safety with or without the flight-control software. Boeing engineers designed the original system to smooth out the feel of the yoke in the pilot's hands during certain extreme high-speed turn and stall maneuvers. Before the Max is cleared to fly passengers again, both the EU agency and the FAA will require flight tests of the new updated software. In addition, Ky said, his agency will require Boeing to demonstrate the stability of the jet in flight tests that include high-speed turn and stall maneuvers with the flight control software switched off. INSTABILITY COMPLAINTS The latter requirement should go some way to satisfying one gnawing public concern about the Max. On the Internet, many Boeing critics have expressed concern that the jet is "inherently unstable" with engines that are too big, and that a software "Band-Aid" isn't good enough to fix that. The EU agency's requirement to fly safely without the flight-control software should demonstrate otherwise. On Wednesday, the FAA declined to clarify if the EU agency's requirements are stricter or in line with its own. "We aren't going to comment on specific details about ongoing discussions," the FAA said in a statement. "The FAA has a transparent and collaborative relationship with other civil aviation authorities as we continue our review of changes to software on the Boeing 737 Max ... Each government will make its own decision to return the aircraft to service based on a thorough safety assessment." While U.S. pilots have said they are satisfied that some computer-based training is sufficient, overseas regulators may require full flight-simulator training. The FAA official said that both the EU agency and India's aviation regulator have so far balked at agreeing to computer-based training alone. Ky said that the agency communicated to Boeing and the FAA in July a list of significant technical problems, which included system failures insufficiently monitored; forces needed to move the manual trim wheel too high; and a risk of crew confusion in some failure cases, especially an angle of attack single failure at takeoff. A slide presenting the "latest status" of the process indicates that the pilot training and angle-of-attack system remain in play. In a statement Wednesday, Boeing declined to comment on discussions with regulators. "We continue to work with the FAA and global regulators on addressing their concerns in order to safely return the Max to service," the company said in a statement. Grounding the 737 Max Eases Turbulence for Airlines The grounding of Boeing Co.'s 737 Max after a pair of accidents killed 346 people might seem an unmitigated disaster for the world's airline industry. Look at flight data, though, and you can glimpse a grim benefit supporting carriers' bottom lines. To see why, it's worth remembering just how crucial the 737 and its arch-rival, the Airbus SE A320, are. Each plane family constitutes about a third of the roughly 24,000-strong global passenger airline fleet. Other aircraft put together - including all wide-body planes like the 747, 787, A330 and A380, turboprops and smaller jets like the Bombardier Inc. CRJ - make up the remaining third. According to Boeing, a 737 takes off or lands somewhere in the world every 1.5 seconds, and there are about 2,800 in the air at any one time. If anything, that probably underestimates their importance in terms of air traffic. Narrow-body aircraft like the 737 and A320 fly shorter distances and are turned around more times. In the U.S., they depart from airports roughly two to three times a day for every time a wide-body jet takes off, according to the Massachusetts Institute of Technology's Airline Data Project. By a very rough back-of-the-envelope estimate, the two aircraft together account for about 80% of global departures. That matters because one of the most important determinants of airline profitability is load factor, the share of seat capacity filled by paying passengers. Flying planes involves very high fixed costs, but once more than about 70% of seats are filled, the marginal cost of dealing with an additional passenger will be far outweighed by the revenue to be earned from selling the ticket - one reason that last-minute bookings can be such good value. Load factor, in turn, is largely a function of whether airlines have over-estimated or under-estimated the pace of passenger traffic growth, and how that relates to the capacity they're putting into the market by buying or leasing planes and using them more or less frequently. This year has been an uncertain one for carriers on that front. The impact of the trade war and general darkening economic outlook has meant that the International Air Transport Association's forecast from the end of last year of a 6% pace of passenger traffic growth is likely to be a significant overestimate. In the first six months of the year, the increase was just 4.7%. If capacity had matched the forecast pace of traffic growth, that would have pushed load factors down by about a percentage point to below 81%, around the levels where profitability starts to struggle these days.(1) But capacity has instead grown by just 3.3% from a year earlier in the most recent three-month period - in no small measure because of what's happening to the 737 Max. The worldwide grounding of the aircraft in March following accidents in Indonesia and Ethiopia took 387 aircraft out of service at a stroke. Had original plans to gradually increase production to 57 aircraft a month this year gone ahead and deliveries kept pace, there could have been nearly 900 in the skies by the end of 2019. As it is, Boeing is still struggling to fix software and clear regulatory demands, and operators are now drawing up their schedules as if it won't be flying until December or even next year. There is, to be sure, a certain amount of slack in the commercial-jet market. Some of those new 737s would have replaced older models that might have gone out of service altogether - but most older planes leaving airlines' fleets would have been sold on to leasing companies and rented, so there's still a marked tightening in the market. If the planes remain grounded through year-end, nearly 10% of the global 737 fleet that airlines expected to be in operation this year will be out of action. That appears to be tightening the supply of seats. Industry-wide load factors hit record seasonal highs in April, May and June, according to IATA. July load factors were the highest for that month in any year barring 2017, according to separate data compiled by Bloomberg, and short-haul load factors that month were the best ever. As a result, the industry appears to be riding out the ongoing fall in ticket prices which has pushed revenues per passenger, per kilometer, down 2.9% over the past year. The 737 Max scandal has been one of the darkest clouds the airline industry has flown through. So far, though, it's staying aloft. (1) Of 22 airlines with load factors of 81% or below in the most recent financial year, just seven reported more than a few million dollars of net income, according to data compiled by Bloomberg. To contact the author of this story: David Fickling at dfickling@bloomberg.net To contact the editor responsible for this story: Patrick McDowell at pmcdowell10@bloomberg.net This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. David Fickling is a Bloomberg Opinion columnist covering commodities, as well as industrial and consumer companies. He has been a reporter for Bloomberg News, Dow Jones, the Wall Street Journal, the Financial Times and the Guardian.