- The Washington Times - Thursday, April 7, 2011

Frank Tyger is attributed with this quote: “Learning is either a continuing thing, or it is nothing.” The grounding this week of some 300 scheduled flights and hundreds of aircraft owing to the five-foot fuselage hole and depressurization of the Southwest Airlines Flight 812 in Yuma, Ariz. (which allowed one passenger to see daylight through the top of the plane at 37,000 feet) brings this epigram to life and illustrates that the Federal Aviation Administration (FAA) and the industry have stopped their lesson plan.

What occurred was not an isolated incident of one airline’s failure to inspect for fuselage cracks. The FAA and Southwest knew those cracks existed and were a systemic problem for the aircraft they were using in their operations. The knowledge of that danger, and the tools to address the dire situation, were held by the FAA - held in reserve.

They knew of these issues three years ago, after a withering set of congressional hearings, chaired by then-Rep. James L. Oberstar, Minnesota Democrat. Going back to 2009, these dangers were documented in findings of my agency, the Office of Special Counsel (OSC), that the Boeing 737-300, 700 and other 737 series, were subject to structural fatigue cracks in the skin of the fuselage. This relates to the Aloha Airlines 737 Flight 243 disaster of 1988, where an 18-foot section on top of the aircraft behind the cockpit came off, turning it into an impromptu convertible at 30,000 feet, much to the horror of flight crew and the passengers who witnessed a flight attendant sucked out of that plane. This resulted in the FAA issuing a safety order, or Airworthiness Directive (AD), requiring regular inspections of the fuselage of these Boeing 737s for just the type of holes or cracks that appeared in the recent depressurization of Flight 812.

When whistle-blowers Bobby Boutris and Doug Peters, both FAA maintenance inspectors, reported to OSC in 2007 that they were being thwarted in enforcing this safety directive by an unholy alliance between the aviation industry and the FAA (the partnership program advanced by the Bush administration), OSC began an investigation. We found a violation of the safety directive and retaliation against Mr. Boutris and Mr. Peters for their efforts to uphold this important safety regulation. We referred the case to the inspector general of the Department of Transportation, Calvin Scovell III, for fuller investigation and correction of the problems, which he confirmed had occurred.

We all testified before Congress concerning violations of the law by FAA and Southwest Airlines. Southwest had to fess up to 100 Boeing 737-300 aircraft overflying the inspection mileage limits. Mr. Boutris and Mr. Peters tried to bring these violations to higher management’s attention; management went after the two inspectors instead of going after Southwest Airlines. The FAA covered up their complicity by fining Southwest an unprecedented $10.2 million - done with the approval of FAA management, who claimed they were “shocked” that inspections rules were being ignored and hundreds of thousands of passengers were subjected to danger. The FAA’s real attitude about public safety was cavalier: Don’t worry about our taking those aging Boeing 737s out of service, you need to make more revenue for our partnership program - just bring those in for inspections when you can.

And there was a slew of press, on CNN, Fox News, C-SPAN, the network morning shows, NPR, The Washington Post, The Washington Times, the New York Times and everywhere else, about the evils of what happened and the heroism of those who exposed a culture of cover-up and complacency at the FAA and in the airlines. One thousand planes were grounded in February and March of 2008, no doubt an overreaction by FAA to cover its tracks, which generated more press about inconvenience to a nation of travelers. A whole fleet of 737s was mothballed by one airline. This cost the aviation industry very dearly and brought the FAA and the administration and lobbyists for aviation a lot of embarrassment.

There was a lot hand-wringing by officials and airline executives, and FAA reacted strongly. It fired several high-level employees, including Frank Sabatini, whose bailiwick had been airplane safety. OSC awarded the Public Servant of the Year award to Mr. Boutris and Mr. Peters, who kept their jobs, and we formed an FAA safety task force and received some 40 complaints of FAA cover-ups, refusal to enforce Airworthiness Directives, retaliation and unsafe runways, many of which were substantiated and actions taken to rectify the problems.

So one would think with all of this oversight, all the embarrassment to FAA and Southwest Airlines, all this awareness of fuselage fatigue in aging Boeing 737s, all the hue and cry in the press about the evils of lax oversight and disregard for safety, FAA and Southwest would get it right. You’d think so - but they didn’t.

In the face of continuing problems with fatigue in the Boeing 737 and with the Next Generation (NG) 737 facing allegations of nonconforming parts creating the very same structural integrity problems in the news, what did the FAA do? It went into business with Boeing to develop the NG warning system and, so far, has tried to sweep the 737 NG structural problems under the rug. The FAA is paying Boeing billions to develop and implement this NG system. So much for independent oversight.

What’s more, the press has failed to report on the relationship between OSC oversight, the inspector general and congressional investigations in 2008 and 2009. Why does the press lose focus and attention, and lack context for their coverage? You might think the flying public’s winter of discontent in 2008 never happened. So when we get past the public theater, past the 24/7 news cycles, past the headlines about airlines grounded or photos of stranded passengers, past the FAA theatrics, it just goes back to the same old lax oversight. The more things change, the more they stay the same.

John Adams said, “Good government is an empire of laws.” But what happens when officials won’t enforce those laws? What happens when our oversight systems impose such small fines that these are seen - like in the Deepwater Horizon case or the recent West Virginia mining disaster - simply to be a pesky cost of doing business.

What kind government do we have? We, the citizens, must join with vigorous representatives who are not merely the toadies of industry and with responsible members of the press to push for greater accountability and better solutions. We all have to have longer memories and muster greater outrage when the regulators don’t do their jobs. That’s if we learn the long-term lesson that is available for us all in this tale. As for industry and the entrenched FAA bureaucracy, we may come to agree with the poet George Herbert, who wrote, “The love of money and the love of learning rarely meet.”

Scott J. Bloch was special counsel for the U.S. Office of Special Counsel from December 2003 to December 2008 and now practices law.

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