NEWSCLIP-2009-09-24: ‘Frontline’ Interview with Clay Foushee

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The FAA Whistleblower hearing happened in early April 2008. Then, in early 2009, Colgan 3407 crashed at Buffalo, and Captain Sullenberger successfully landed in the Hudson River after a multiple birdstrike. FAA had still not selected anyone to run the new Whistleblower office they had penciled out. So, an extensive investigation by’s ‘FrontLine’ television show. Numerous people were interviewed at length. Here is a copy of the Foushee interview…

You come to this with a lot of airline experience. Tell us a little bit about that.

I actually started my career as an academic, and then after I finished my graduate work, went to NASA, where I was involved in the Human Factors Division at NASA Ames Research Center in California. We did a lot of aviation safety-related research. And that, I suppose, qualified me as some sort of aviation safety-type expert.
Came to Washington after 10 years at NASA, as the chief scientist at the FAA [Federal Aviation Administration], and then was recruited by Northwest Airlines, where I ended up as the VP of flight operations for the Midwest. So I was responsible for everything having to do with the movement of the airplanes, which, of course, included safety as the number one priority.

So you’ve seen the aviation business from a lot of perspectives.

A lot of different perspectives. Yes, sir.

Business is good for you right now, I guess. But good is not so good, right?

Good is not so good. We had a lot of concerns when I came to the committee two years ago and Chairman [Rep. Jim] Oberstar [D-Minn.] took over the committee. We began to gather information about the state of the regulatory environment and the various trends in the aviation industry, and we began to hear a lot of disturbing information. Some people were alleging that the FAA had become perhaps a little bit too cozy with the entities — the airlines and other companies that are involved in aviation — … that they’re supposed to be regulating.
And while we certainly have no problem with the concept of partnership — I think there are some healthy things about the regulator working as closely as possible with those that they regulate — but there has to be some sort of balance in the system. And we were concerned that the balance had shifted more toward the cozy side and that the regulatory enforcement side was getting left behind. …
So what the FAA did — and this probably began in the ’90s — … [is] it said: “Look, we’ll never have enough inspectors to check everything. That’s just impossible. It’s a large industry. It’s growing by leaps and bounds. We can never hope to do surveillance and find everything that’s wrong in the industry. So why don’t we incentify [sic] certificate holders” — air carriers, airlines — “if they expose a problem themselves, if they find something that’s wrong, and they come and tell us about it, then we will waive enforcement proceedings if they will agree to do some sort of comprehensive fix.”
Now, that was a good thing, … because it gave the FAA perhaps a lot more information than it had ever had in the past. But what we began to see is that over time, this partnership program had moved more toward, “OK, if we didn’t find this problem, but the FAA finds a problem –“ And the easiest way to deal with it was to talk to the certificate holder and say, “Well, why don’t you just file a voluntary self-disclosure?” It was becoming — some people called it a “Get Out of Jail Free” card. So the balance was missing from the system. The pendulum had swung too far toward the cozy side. That was our concern. …

How did the industry get to be the way it is now, with … half the business essentially outsourced by the big companies?

I think a lot of it had to do with economics. … Deregulation was a driving factor, because deregulation created much more competition, which drove fares down, which squeezed profit margins, which led airline managements to become more and more creative about how you squeeze a few pennies of profit. It’s a very capital-intensive, very expensive business to run. …
So, as airlines began looking at expanding their route structures to gain more and more market share, there were many, many communities that just could not be served economically with the larger — 100-seat and above is what traditionally the major carriers were. … They could be served, but not economically and not without raising fares to a level that would suppress demand.
So, rather than buying all those airplanes and doing it yourself, they began to look for ways to pair up with other operators who were already in the regional business. So they created these mechanisms where: “OK, we’ll buy 50-seat airplanes for you. You’ll set up or expand an existing company, and you’ll start service, and we’ll pay you X amount per revenue mile that you fly. And we’ll make it look like it’s actually our airline. We’ll paint the airplanes the same colors. We’ll call it United Express or Northwest Airlink or American Eagle or Continental Express. You buy the ticket from us, but you’re really flying on this other carrier.”

Isn’t that a little bit disingenuous, though?

And, in fact, that’s a big part of the controversy. … Many people justifiably point out, certainly after the Colgan accident, that “I thought I was flying a ticket on Continental, and now I find out that I was flying with Colgan Airlines, and this is an airline with a different set of operating standards and different management and really has nothing to do with Continental.” In fact, Continental has disassociated itself from Colgan and said, “Well, that wasn’t us,” even though the airplane said Continental Express.

You can’t have it both ways, can you?

And the argument is you shouldn’t. … I don’t think there’s any question on either side of the aisle, or no controversy among aviation safety professionals or airline safety managements, that there should be one level of safety. But I think it’s clear that we don’t currently have one level of safety, even though we went through the same kind of controversy in the mid-90s, and one level of safety is mandated. We’ve begun to slip backward.

Let’s back up just a little bit, though. … Why didn’t [the major carriers] just go out and buy smaller airplanes and run those routes themselves?

Again, cost. Most of the major airlines have pilot unions. They have negotiated pay scales. The costs of major airline pay scales were historically — and still are — significantly higher than at the regional carriers. … [If] you have a DC-9 co-pilot making $100,000 a year, you can pay a junior pilot $24,000 a year, and you can fly that route for an awful lot cheaper. …

So [the] same business model that was built around the notion that it was a regulated industry, suddenly they’re deregulated, and it didn’t work.

Right. Now, in fairness, there was another factor that came along that really caused this major, major growth, and that was the development of regional jets, commonly known as RJs. As you may be aware, there are many people in the traveling public who get nervous about prop planes. They think somehow that a propeller-driven aircraft is antiquated and perhaps not as safe as a jet.
Up until the mid-90s, we didn’t really have the availability of these smaller 30-, 50-, 70-seat regional jets. Now we have those. That created a higher level of acceptance in the general public. Airlines started financing these regional jets, turning them over under lease to their code-share partners, and that really also prompted a significant amount of growth in the regional industry.

So help me understand this equation. The fewer number of seats behind you, the less you’re going to be paid as a pilot.

… Traditionally, in the industry, the bigger the airplane that you fly, the more money you make. That’s the way contracts are negotiated. That started during the period when airlines were regulated, and it continued into deregulation.

So if my hide is on that airplane that’s 50 seats or less, I really am not going to get the same level of experience in the cockpit. That’s just a rule of thumb. That’s just the way it is.

Doesn’t necessarily have to be that way. … You may very well end up at a regional carrier with a highly experienced captain who’s just decided his or her lifestyle is better staying at this regional carrier. He or she would rather fly the short-haul routes than fly these longer-haul routes. That’s less likely, because why would anyone settle for a much lower rate of pay when they have the opportunity to move up? So it’s rare. …

Is that right? Is that the way it should be?

It’s a tough thing to figure out what the solution is simply because that’s the history of aviation. You have to get experience somewhere. … How do you get that experience? Where in aviation are you going to get that quality level of experience? …

My assumption has always been that, yeah, there’s going to be that inexperienced first officer, but that captain in that left seat, he’s going to have some gray hair in the temples and several thousand hours. And there’s a mentoring system that I presumed to exist in the airline industry which I think doesn’t exist anymore.

I think that’s exactly right, and that’s an excellent point. And it’s one of the policy discussions that we’re engaged in today. Certainly with regard to the major airlines, that mentoring system is very much alive and well, and I offer no better example than Capt. [Chesley] Sullenberger. Sully was exactly what we all want to see in the airline pilot. He’s a teacher; he’s a proficient pilot; he is a master manager; and he also happened to have a very skilled person sitting in the right seat with him.
That mentoring process is where a lot of younger pilots gain experience. That’s how they learn.
In the regional industry, you don’t see that today, because there has been so much movement, and all those people in the regional carriers typically, because of the salaries, have been waiting for [a] seat at one of the major carriers.
And so we’re looking for ways to try to re-establish that mentoring process, even at the entry level. …

It seems to me it’s pretty hard to have a two-tiered system like that and have one level of safety.

I suppose in a sense it is, but there’s another thing that you need to consider. As we all know, most accidents occur during the takeoff and landing phase of flight. So, in fairness to the regionals, you really need to be aware of the fact that regional carriers are flying these very short-haul route structures. So they’re doing many, many, many more takeoffs and landings. They have a much higher rate of exposure.
If you’re flying a 747, between the captain, the co-pilot, the relief captain and the relief co-pilot on a long-haul route, you might be lucky to get one landing and one takeoff a week. …
People at regional carriers are getting 35, sometimes 40 takeoffs and landings a week. … And they’re flying more dense routes. They’re flying at lower altitudes, [are] more susceptible to weather issues. So they have more exposure.
Nonetheless, that accident rate is higher than it is at the major carriers, and we have to try to address that.

So, even when you factor in all that stuff, you still would say that the accident rate for the regionals is unacceptable?

Any accident in aviation is unacceptable. One of the reasons that the system is so safe is we’re obsessively compulsive about the rules. And whenever there’s an accident, there’s so much public attention; there’s so much regulatory attention. A single accident is unacceptable, so we always bend over backward to try to do everything in our power. …

But when the last six accidents in this country — fatal accidents — are regional, that’s saying something, isn’t it?

It would suggest that we have a trend that’s unfortunate. It absolutely suggests that. … It definitely implies that we have to work very hard to find ways to mitigate that risk.

Does it suggest an unsafe system?

No. No. I don’t think you can say the system is unsafe. Even if you look at the number of flights per day by the regional carriers, by any standard, it’s a safe system.
But we have a different definition of what is safe in aviation versus what is safe on highways, what is safe on the rail. … More people die in the United States falling in their showers or in their bathtubs or in some sort of home accident than die in commercial aviation. So by any rational, reasonable standard, it’s an incredibly safe system. …

So we really should be doing a documentary on bathtub safety? I mean, why are we here? Why do we care so much about this?

Because it is the gold standard for safety, and we want to keep it that way. …

When you were back at Northwest, how did they manage the regional system there? … What I hear from a lot of the legacy carriers is, “Well, it’s up to the FAA to handle the safety piece for the regionals. We don’t get involved in that,” which kind of shocks me.

Yeah. Things have changed. I would characterize what we’re going through today as round two of “one level of safety.” I referred to earlier that we went through round one of one level of safety, and we did this as a result of four or five regional accidents that occurred between 1993 and 1995. …
I was running flight operations at Northwest Airlines, and we had regional operators. And as a matter of fact, one of our code-share partners, Northwest Airlink, was one of those accidents. There was an accident that happened with a Jetstream aircraft in Hibbing, Minn., on an airline no longer in existence called Express I.
And we took a long hard look at ourselves at the time. It was apparent to us, and it was certainly apparent to me, that we sold that ticket to people who died on that aircraft, and we had some responsibility to those passengers to ensure their safety.
So we completely changed our outlook on how we dealt with those regional partners, and I established audit teams of Northwest employees who went out and did routine inspections of those operators. We looked at their manuals; we looked at their procedures; we looked at their checklists. And we strongly suggested to them if we found deficiencies that they needed to address those deficiencies.
Now, it’s a tough thing to do, because you’re talking about a commercial arrangement, and we’re telling them they don’t live up to certain standards, and we will help you fix those things. We offered them resources that cost us money, and we offered expert assistance for them to fix those things. That worked pretty well, and we had an excellent safety record for a long period of time.
I think most carriers went that same route during that period of time in the mid-90s. I think what’s happened today is we’ve forgotten that. Commercial realities, recessions, 9/11 — so many bad things have happened to this industry, so many financial pressures have been placed on the industry, I think we forgot that. …
I heard some discouraging things after the Colgan accident from the parent carrier, which, in my mind, seemed to be disassociating itself. … I think the parent carrier has a responsibility, because they’ve entered into a commercial relationship, and they have marketed their services to the customer as being Delta, American, United, Continental. I think they have a responsibility to the customer to ensure that they’re operating at the highest level of safety.
That means they need to be involved in the regional carrier. They need to be involved in auditing their operations. … They need to do inspections almost the way FAA should be doing inspections. …
There’s legislation pending. I think you will see a requirement that the parent carrier … has a responsibility to oversee and maintain the standards of anybody they’re in a commercial or code-share relationship with.

One of the things they say is: “Look, these regionals have relationships. They are outsourcing for multiple companies. [They have] multiple sets of standards. The only practical way to do this is have the FAA standard be the standard for safety.” What’s wrong with that thinking?

There’s been a debate about this for many, many years. Some would say — and FAA, I think, would say — that the federal aviation regulations are the floor. That’s the minimum standard.

Why is that? What about this “gold standard”? Because give me the gold standard! I want it!

Well, Miles, you make a good point. There is federal law in the United States that every rule has to go through a cost-benefit analysis. That’s not just aviation; that’s every rule. … You have to be able to demonstrate scientifically that the cost of putting that rule on the books, that there’s benefit that outweighs that cost.

Are they figuring out the cost of a human life in this?

Cost of human life factors into it. It sounds macabre to even contemplate that we go through —

But a dollar figure is assigned to the number of people who might or might not die, depending on how this rule goes down.

That has been done in certain cost-benefit methodologies.

That’s kind of grim.

Is that really the way it should be in this business?

I suppose we have to ask, what’s the alternative? I don’t have a good answer for that. That is the law.
Again, it’s a question of balance. … That requirement does induce some discipline into the system. It causes us to think about what we’re doing when we impose regulations on the industry. If we’re too restrictive in terms of safety, and if we keep laying more and more and more rules, I mean, ostensibly, in a worst case scenario, you can end up wrecking an entire industry or making a certain segment of industry economically unviable.

I get that you’ve got to be reasonable with the rules. But what I go back to is the big carriers, the legacy carriers. The majors see that bar that the FAA sets and says, “That’s not good enough,” and they exceed it voluntarily, but the regionals are not. Why not?

They’re operating at a much thinner cost structure and margin.

But they’re making money. I’ve seen the numbers. They’ve got, like, 10 percent returns. The big guys would kill for that.

Right, right, right.

So they can afford to be safer, can’t they?

Some can. Certainly they can. In fact, it’s not a question of affording being safer. They are required to be safer.

Well, no, they’re not. The mandatory is what they meet, right?

Well, in the case of several of those accidents, clearly even the minimum standard was not being met. That’s very, very disturbing. …

So is it time to raise that bar?

I think it’s time to raise the bar on several levels. Absolutely. In fact, we have legislation pending to tighten up training in the regional industry. We have suggested to the Federal Aviation Administration — and Administrator [Randy] Babbitt is moving out on this very, very quickly — we’ve installed flight/duty time regulations. [We’ve] been living with the same flight/duty time regulations for the last 40, 50 years.
We know a lot more. There’s a lot more science now about things like circadian rhythms and time of day and sleep cycles. And one-size rule doesn’t fit all types of operations. Flight/duty time regulations as they currently exist may not fight a regional operator that’s flying eight, nine, 10 takeoffs and landings a day. …
There’s a lot of pressure on today, and just yesterday, as a matter of fact, at a House committee hearing, the administrator said that he intends to have new flight/duty time regulations in place by the end of this year. We’ll see.

But there’s that whole process — the regulatory cost-benefit analysis that goes into this, right? I mean, these things just don’t happen like that.

They have to go through all that. And by the way, when you go through a rulemaking project — and I neglected to mention this a few minutes ago — most people don’t understand this. They think that the Federal Aviation Administration or the Federal Highway Administration or the Federal Railroad Administration, they can go in and they can justify a new rule. Let’s say it’s a no-brainer rule where clearly the benefits outweigh the cost and you’ve been able to demonstrate that very compellingly.
In order to clear the hurdle, that rule then needs to go to the White House Office of Management and Budget, under federal law, and the OMB has to do its own analysis of that rule. Now, this is sometimes where politics enters into it, and different administrations have a different kind of philosophy of rulemaking. What may be true of the Obama administration’s approach to rulemaking and its philosophical views on rulemaking as reflected by their OMB may be quite different from the philosophy of the former President Bush’s OMB.
So rulemaking is a very complex process in our federal government, and rules have to clear all these hurdles before they can ultimately be put into effect.

I sometimes get the sense, though, that through all this, somewhere along the way, common sense gets lost.

I think that’s probably true. It’s definitely true. I think, however, we always get complacent. We went through years … where there wasn’t a single fatality in the United States in a commercial airline operation. It takes an accident to shock us back to our sensibilities. …

Let me ask you about, in particular, Colgan. Is Colgan and its relationship to, in this case, Continental, is that typical?

Yes, it is typical. Some carriers are closer. For example, American owns the American Eagle carriers. With ownership theoretically comes the ability to effect more change. …
Continental’s relationship traditionally has been much more arm’s-length. They simply enter into a commercial arrangement, and they pay whoever — whether it’s Colgan or one of the other of their affiliates — they simply pay them to fly X number of miles. They build the schedule. They sell the tickets. They tell the airline that, “We want you to fly two times a day between this city and that city, and we will pay you X amount for flying that route course,” and then they send them a check. …

What we’re talking about here is low-bidder flying, essentially. A lot of these guys are kind of scrappy 135 operations, and the brass ring is to cut a deal with Continental and fly those segments. And it’s a very lucrative business, isn’t it?

Yeah. It’s not always bid out. There have been cases where there are two carriers that are in the general vicinity, and they’re logistically capable of providing the same service. And they may play them off, one against the other and say, “Take the lowest bidder.” So that does, in effect, happen.
But practically speaking, they can dictate the terms. … It’s like: “You fly this. This is what we’re going to pay you.” … The regional carriers are not really in a very good position to say no. They’re really captive to the major carriers.
That gives them access to a network. They don’t have to invest in the infrastructure to do their own reservation systems. They don’t have to worry about sales and marketing campaigns. They don’t have to have ticket agents. Everything is taken care of for them by the parent carrier, and all they have to do is operate the airplane from point A to point B.
And they get paid based on a completion factor in some contracts, which raises a disturbing question, because if you have cancellation, or you deviate due to weather, are they actually going to get paid for flying? Or are we incentifying regional carriers to actually complete segments when it may not be safe to do so, when the safest thing may be to cancel that flight or divert to a different airport? …
And there have been regionals that have gone out of business simply because the major carriers decided not to deal with them anymore, and they ended up having to fold up shop.

Because they have so much leverage here, is there some responsibility they should have — the big guys — to pay a decent amount of money to these organizations to fly these routes?

Well, yes. We certainly believe that’s true, but what gets complicated is what’s “a decent amount of money”? What’s the definition of “a decent amount of money,” and what is a fair salary? I mean, who determines that?

I think we can say $16,000 is not fair.

I think you can say that.

We can agree on that one. That’s food stamps, right? So somewhere north of that for sure is where we should be headed.

Should that be factored in? Should these big guys be thinking about that?

I believe that they should, and I believe that they have an obligation to come up with some sort of solution.
One thing that absolutely is their obligation is for them to be doing very, very thorough audits of those operators. They ought to be crawling around these regional operators. They need to have their hands on the operation; they need to have their hands on the training programs, and Big Brother needs to be looking over Little Brother. …

Is this something that needs to be changed when you talk about the regulatory rule process? Is this legislation to force, at the very least, that they’re paying attention?

I believe that there will be either new legislation or new regulations that will require — as I mentioned previously, back in the ’90s, … the FAA was insisting that you do these audits.

So they forgot?

I don’t think it ever was codified as part of federal regulations that this was a requirement. That’s why it was easy for it to be forgotten. A lot of people may not recognize that the FAA sometimes does things outside of the rule-making process through the use of things like advisory circulars or guidance to carriers or —

Calls to Action.

Calls to Action. That’s right — trying to get carriers to voluntarily do this.
And because the requirement not to inspect the regional carriers was never officially codified in the federal regulations, I believe that’s allowed them to conveniently forget about that.

… Let’s face it. The aviation industry is a small, insular world. These inspectors know the people they’re inspecting and vice versa, and then they’re taking jobs back and forth, and the revolving door spins around. … I keep coming up with the analogy of if I’m going to have a police officer on the street, I want him to be a tough cop; I don’t want a nice cop.

Right? Or is there something wrong with that? If they’re too onerous, does the system not work?

That’s the $64 gazillion question here. … What is the right regulatory philosophy, and what yields the best result? And the best result in this particular case is enhanced safety.
I think it’s clear that there’s a role for the tough cop. When you have a bad actor, especially a repeat offender that keeps doing the same thing over and over and over again, the tough cop needs to be there to take some tough action.
If you have a case where somebody has sort of stumbled inadvertently into doing something wrong and they’re extremely remorseful, and they intend to make amends, and they bend over backward to try to correct whatever deficiency led to the offense, maybe there’s a role for a little more partnership and a little kinder and gentler approach by law enforcement. I think we see that all the time in various other environments.
What we saw in our investigation that involved Southwest Airlines and the FAA’s relationship last year was a situation where it had grown entirely too close. The revolving door that you referred to, the individual who was in charge of coordinating with the FAA had been an FAA inspector a few months prior and had just recently gone over to that role. Why did Southwest hire that individual? Obviously that individual had relationships that would be helpful in terms of their FAA relationship.
So you can’t be too cozy, and you can’t necessarily be too tough. If you’re too tough, then you may end up with a situation where the carrier’s trying to hide everything from you, and you’ll never catch everything. You’ll never be able to hire enough inspectors to catch everything.
So in that Southwest case, there’s no question that the relationship had grown entirely too cozy. …

How did you find out about it?

It was a long and involved process. We had been concerned about this relationship issue, and we’d been talking about it among ourselves. Ever since I’d joined the committee in my current role, there had been persistent allegations among retired FAA inspectors and current FAA inspectors. Whistleblowers who would contact us and want their identities protected for fear of retribution would make allegations that, “I went out and found X number of violations, and my supervisor won’t let me proceed.” So we’d heard a chorus of this kind of thing.
In the case of Southwest, I got a phone call from a fellow staffer over on the Aviation Subcommittee, and she said: “I have this individual on the phone, and he sounds extremely credible. He has a lot of concerns. He’s worried about divulging his identity, but I think you need to talk to him.”
So she transferred the call to me, and I spent about an hour, hour and a half on the phone with this individual, and I asked him if he could provide documentation for his allegations. And he did. He didn’t want his identity known at that time, and he was concerned about retribution. He was already under investigation for some things — he’d been removed from his job to inspect a certain part of the Southwest fleet, presumably — and what we later learned — because he was too tough.
People were making charges against him, and whenever charges are made against an FAA inspector, they have to go through this formal investigation.
So, over time, I talked to this individual. We went through his paperwork, and he agreed to let his identity be known, and he agreed to participate in the investigation. We suggested that he seek protection under whistleblower protection laws with the U.S. Office of Special Counsel, and he did do that.
He had a co-worker also in the same office, who had even more concerns. … Bobby Boutris was the first individual who approached us, and then Doug Peters came along later. Doug was concerned also about his career at FAA. … Doug’s first words are always, “I am not a disgruntled FAA employee.” Doug happens to be one of the most dedicated FAA employees I’ve ever met. Doug’s concern was that we’re not doing some things right, and we need to fix it. And that was Doug’s entire motivation for coming to Congress. He felt like he had no choice.
And that’s what we see with many of these individuals. I mean, we’re the last stop for many of these people. They don’t know where else to turn.

They’re telling the truth.

These two individuals were telling the truth. I mean, they got it 100 percent right. There’s no question about it. The FAA doesn’t deny it. The U.S. Department of Transportation inspector general found overwhelming evidence for everything that they said. The U.S. Office of Special Counsel ratified all of their charges. There is no question that these two individuals were 100 percent on target.
It’s not always the case with all whistleblowers. I won’t say that the majority of whistleblowers are fabricating things, but sometimes they have selective memory. Sometimes there are reasons why they were disciplined.[1] And sometimes it’s very difficult to document the things they allege, and it becomes a case of, well, the whistleblower says one thing, and somebody else says the other thing, but there’s no evidence one way or the other to prove those charges.
What was rare about this investigation was that these guys had the proof. … Mr. Boutris had records where he sent 38 memos to senior FAA management talking about deficiencies in the Southwest maintenance program, talking about problems that the FAA was aware of that they were not fixing. This is an individual who is a very, very highly skilled investigator. He knows more about airplanes than most inspectors have forgotten. …
I had the memos. His recommendations were not acted upon. …


That was what we were concerned about. What did that mean? … You didn’t follow the rules. You didn’t comply with this airworthiness directive [AD]. By definition, that airplane is not airworthy; you cannot fly it.
But they were allowed to fly with the full knowledge of the FAA. Why the deaf ears from FAA? Over time, the agency had developed a culture — I mentioned previously that in the ’90s, we developed these partnership programs. We developed these partnership programs because the bad-cop routine wasn’t working, and we wanted a way to get more information.
When I was at Northwest, I was a primary advocate for these partnership programs. Now, the idea is if you were going to get somebody to come forward and confess, you don’t then turn around and whack them, take their certificate away, dump a $10 million fine on them.
So if you’re going to confess that you’re doing something wrong, you have to somehow absolve them from fear of prosecution. So that was the carrot to get people to come forward, [the] idea being the more we know, the safer we can make the system. …
It was incumbent upon the confessor to say, “I did this wrong, and here’s what I’m going to do to fix it.” You have to propose a comprehensive fix.
What was happening over time is that it became easy for the FAA to use this as a solution to all the problems. So we found a number of cases at Southwest and also at other carriers where these voluntary self-disclosures that were being made were repetitive. In other words, they were saying: “We did this wrong. Here’s the comprehensive fix.” Then six months later, they were submitting another self-disclosure saying, “We did it wrong again, and here’s the comprehensive fix.” And then, “We did it again. Here’s the comprehensive fix.” In other words, there wasn’t a comprehensive fix.
The other thing that we got wind of is that, in some cases, … an FAA inspector would find something wrong, and the easiest way to deal with it would be to call his friend over in Southwest management or American management and say, “I think you need to submit a voluntary self-disclosure on this.”
That’s against the rules. The voluntary self-disclosure is only applicable when the carrier itself identified the problem. If the FAA becomes aware of it, it’s off the table for self-disclosure. Then it’s incumbent upon the FAA to take some sort of enforcement or corrective action.
So the FAA had drifted away from the enforcement role. There weren’t many bad cops left — or tough cops, I should say — and it had drifted into this very, very cozy relationship. …

I was looking at this description. This is from your hearing. … This thing here, the Customer Service Initiative, it goes on and on about how the FAA is going to be fair and promote resolution of disagreements and all kinds of warm, fuzzy stuff. “FAA employees will be accountable to achieving the agency’s mission.” It makes it sound like the FAA is your friend.

It does, doesn’t it?

[The] FAA is not supposed to be a friend of the airlines, right?

No, I’m afraid not. They have one responsibility, and that’s to the traveling public. …

How did that get confused?

It’s outrageous. That’s what set the tone. That’s what set the tone and the culture. And when we came across these — I have to confess, at the beginning of this investigation, I wasn’t even aware that existed. And when we came across that on the FAA Web site, we started doing a little bit of digging.
In fact, I think at some point, one of the inspectors that we were talking to said, “Have you seen this Customer Service Initiative?” I said, “What’s that?” And so I started going through the materials, and it was stunning. It was stunning. My first reaction, of course, is, “Who is the customer?”
And then we started digging a little more, and we heard a number of cases where inspectors alleged that they were removed primarily because they were trying to do a diligent job of enforcement. They found something wrong, and they’d gone in; they’d done thorough work; they documented the problems that they’d seen at airlines. The airline had gone in and complained to either their supervisor, or, if it reached another level of elevation — the final level of elevation is Washington headquarters — and that inspector had ended up being removed from a certificate or moved somewhere else.
And there’s something wrong with that. There’s something really badly wrong with that.

What drove the FAA in this direction? Was it the fact that in 2003, the airlines are on the ropes economically? You had an administration in power that was looking to loosen rules wherever possible? Is that what was going on?

I think it’s a combination of things. I think it’s all of the things that you mentioned. The Customer Service Initiative was a priority for the then-administrator, Marion Blakey. She announced it in a speech. She basically issued orders and guidance to her senior staff to implement this Customer Service Initiative. I suppose they were trying to be supportive of industry.

And, of course, Marion Blakey now works for industry.

Yes. President of the [Aerospace Industries Association]. …

So was she thinking about what she should have been thinking about as the FAA administrator there?

I can’t, obviously, comment on the administrator’s motivation. Clearly, the administrator was safety-oriented. In this particular case, perhaps the administrator thought you could kill two birds with one stone. You can be collaborative: You could help the industry, and at the same time you can improve safety.
Reasonable people can disagree philosophically about the proper approach to regulation. We certainly disagree. We certainly thought that that sent the wrong message. It seems clear to me, and it seems clear to us now — it seems clear to them now — that that was sending the wrong message. As a matter of fact, Administrator Babbitt just earlier this week — three days ago — announced that the Customer Service Initiative is no more. We still have CSI, but they’ve changed the name to the Consistency and Standardization Initiative.

And so it’s an entirely different sheet of particulars then, right?

It doesn’t say “customer.” And again, some people would say that the Customer Service Initiative was grossly misunderstood because, “We didn’t really mean that it was customer service. We meant that the customer could point out when” — I think because FAA inspectors are people. They make mistakes; we all make mistakes.
It’s entirely conceivable that an inspector can be wrong and overly strict and overly punitive.

And there might be no recourse. Or there might be the perception there’s no recourse.

And so there should be recourse. …
The problem, though, with the Customer Service Initiative — the way it was pushed, the way it was implemented, the way it was communicated to the workforce — sent the wrong message, sent a very bad message to the industry —

What was that message, that “we’re accommodating”?

— and it sent a bad message to the inspector group. Yes, it sent the message that, “Look. I can cut a deal.” And a couple of the other things, like the self-disclosure, which some people characterized as becoming a “Get Out of Jail Free” card — all you had to do was make a phone call to somebody that you became friends with over the years and request reconsideration, and it would be taken care of. …
There was too much of that going on and not enough enforcement — especially for repeat offenders, and that was one of our prime concerns. …

Let’s talk for a moment, help people understand what an airworthiness directive is. In the aviation world, it’s a big deal, but I don’t think the average person understands.

… When a new aircraft is built, it’s initially certified by the FAA, and there are a number of requirements for certification. … They test-fly it. They try to put it through as many real-world conditions as they can, and then they decide that that aircraft is safe to operate, safe to carry passengers on. So they get an airworthiness certificate from the Federal Aviation Administration.
Over time, as that aircraft goes into service, things wear and tear; parts begin to wear out; and you learn new things about the aircraft. Certain things need to be fixed. That’s where the airworthiness directives come in. As you gain experience with the aircraft, you discover things that need to be attended to. It’s much like a recall for an automobile. You discover problem areas that need attention.
So the FAA has the authority — and actually, they do this all the time. They issue a couple of hundred airworthiness directives every single year, covering various aircraft types. Sometimes it may cover this model of 737s, but not that model. So it can be very complex.
But the FAA writes an airworthiness directive, which gives an operator of a particular type of aircraft X amount of time to make a change to that aircraft, to bring it up to a safer standard.

And it’s not optional.

It is not optional; it’s mandatory.

And the FAA, when they write these airworthiness directives, are they reasonable about it?

They try to be reasonable. … They’re certainly written in ways that the engineers understand, but sometimes they can be very complex, very difficult to understand.
And that is really part of the problem that we face today. Sometimes operators think they may be in compliance with an airworthiness directive, but it’s not entirely clear whether they are or they aren’t, and it leads to miscommunication. …

It costs a lot of money to comply with an airworthiness directive.

Not always.

You take the airplanes off the line, right?

It depends on the complexity of the airworthiness directive. An airworthiness directive could be as simple as changing the type of lug nuts that you use on a wheel, which can take place between flights between A and B, or on the ground between flights. Or it can be as complex as taking an aircraft out of service for a week or more.

Southwest was just simply not wanting to pull these planes out of service to conduct these inspections? Is that what it boiled down to?

In this particular case, they failed to recognize that they were out of compliance. They didn’t realize they made a mistake. Somewhere in the tracking system that they had set up, they had neglected to realize or be conscious of the fact that X number of aircraft had to be inspected in a certain specified area, using specified techniques, and they missed it.
So these aircraft that flew before Southwest discovered it, some had flown for three years.

Honest mistake?

Could have been. They claim it was an honest mistake. I don’t think we’ll ever know. The reason I think it’s an honest mistake, however, is that they were in compliance with other related ADs for inspection of cracks, but they missed this one.
But the real disturbing thing was what happened when they discovered it.

What happened then?

They disclosed that somebody found out. Somebody was going through and doing an audit of their system. Somebody found out they’d missed this. … They called the FAA. They discussed it. The FAA inspector or the principal maintenance inspector, who really is the supervisor of the maintenance program at Southwest Airlines for the FAA, told them to send in a voluntary self-disclosure.
They sent in the self-disclosure. But this particular AD required the comprehensive fix. The comprehensive fix is you get yourself in compliance. There’s a question on the self-disclosure that says, “Did the noncompliance cease immediately?” The answer must be “yes,” or the self-disclosure is not accepted. They answered, “Yes, the noncompliance ceased immediately.” That means the airplane cannot fly again until it gets inspected in accordance with the AD.

So they were flying dozens of airplanes —

— that, by the book, were not airworthy.

Southwest approached the FAA and said: “You know what? It’s going to take us a while to comply with this AD. And if we have to pull these 40-something airplanes out of service” — initially, they thought it was 100 airplanes, which was a big chunk of their fleet. And considering that each of those 100 airplanes may fly six or seven flights a day, that’s a big chunk of the schedule to cancel.

It would have cost them millions.

Millions. Tens of millions. And a lot of bad will and a lot of revenue stream disruption, because people get angry with airlines, and they book away from them. So a lot of implications from canceling large numbers of flights.
So Southwest, they went to the FAA. They said: “Look, we can’t comply with this overnight, and we can’t put all these airplanes down. Can we have some extra time?”
And this is where everything went off the tracks. This FAA inspector said, “Yes, you can.” He did not have the authority to do that.

What should have happened at that point?

Grounded. They had to be grounded.

There was no appeal on that.

There is an appeal process, had they gone through it. Now, it doesn’t necessarily mean you’re going to escape the grounding, but there’s a process called “alternative means of compliance” for an AD. If you think you have a better way to accomplish it, or a simpler way of accomplishing it, you can appeal to the FAA. But you have to do this before. You can’t do it after you’ve found the problem. …

Do you think what happened there is more widespread?

Yes, I believe that it is. I think today it is; I think it was then. A lot of people aren’t willing to talk about it. It’s a very difficult thing to prove. Inspector general — the investigations is continuing. I’m aware of numerous other allegations. We’re continuing to work those cases.
FAA is working very, very hard to try to clean up the process. Another one of the initiatives that was announced this week by the administrator is a process by which they are going to try to make the airworthiness directive compliance process easier to understand. …

Is this in part a problem of the quality or quantity of FAA inspectors?

We believe that it is. We believe that they’re very seriously short-staffed. The FAA needs more inspectors. … This industry has grown way faster than the FAA’s ability to oversee it.
In the House reauthorization bill for the FAA, we put in many, many, many new inspector positions. …

And when you look at the way the aviation industry has changed, with the outsourcing to regionals and then the outsourcing of maintenance, too — I mean the maintenance is done all over the world now.

As a practical matter, these inspectors, they’re not touching the metal, as they say.

No, they rarely touch airplanes anymore. They’re shuffling paper.

So it’s the honor system. We’re relying on the airlines to do the right thing?

In many cases we are.

In the case of Southwest, with all those airplanes that flew all those flights out of airworthiness compliance, is there any way to get a handle on how much risk the public faced unknowingly?

It’s hard to know. The airline management say no passengers were in danger, but … things happen in this industry that we don’t expect. We’re learning things every single day in this industry. So I can’t sit here and assign a number to how much danger they were in.
We didn’t expect that football-sized hole that appeared on the Southwest 737 a couple of months ago. In that particular case, that was a section of the aircraft that had no ADs written on it. So the resolution to that incident after the investigation is FAA issued another AD for another section of the 737. That was the answer.
So now, all 737s of that genre, that make, model, run number, are going to have to go through another AD compliance process in order to inspect for cracks in that area of the aircraft.
That’s what I mean. There’s no way to assess, but … when you become aware of a potential problem, we accept no level of risk. We address it. …

[Are you getting a lot of phone calls from whistleblowers right now?]

What’s going on?

… Chairman Oberstar and I have had several discussions on this, because the volume really has been quite remarkable. And I guess it appears to me that, for the first time in a long time, as a result of the publicity associated with the hearings, certainly the climate for aviation safety these days — a number of factors have sort of come together. And there’s now a belief out there that, “Hey, somebody’s actually listening to this stuff, and maybe something can actually change if I come forward with what I believe is a serious problem.” So that’s certainly helped open the floodgates. …

How scared should we be?

I think the new administrator certainly has a lot of work to do. We’ve had discussions with him, and I think he understands that there is a very big cultural problem in the FAA culture that’s festering and needs to be addressed. …

What percentage of the [tips] you get pan out? What’s the wheat-from-the-chaff ratio?

That’s hard to say. Probably 50 percent of the reports that we get, there’s clearly something there, but there’s another side to the story. So it becomes a question of, it’s not necessarily actionable. [It’s] not necessarily clear that an agency has done something wrong. It’s just a matter of interpretation, and somebody’s upset. Those are usually fairly easy to deal with.
In some cases, there are just disgruntled people in the world who imagine and see things. That’s another 20 or so percent. And part of what we have to do is we have to make that determination.
And then you have cases like Mr. Boutris and Mr. Peters. … That’s maybe another 20 percent.

So with all those averages in mind, there’s still a high volume of calls right now.

High volume. But what you have to ask yourself is, how many people call and [how many] don’t? And a very large number of those people that do call, I never met who they are, so I cannot necessarily intervene. They’ll report something, and they’ll say: “But you can’t use my name. I don’t want to be identified. I’ll lose my job”; “I don’t want to go through the rest of my career being tortured, but I think you should know this.”
Those are hard, because how do I deal with that? So I try to handle those as best I can with the relevant FAA management. …

Can you give me numbers, the volume of whistleblower cases that are under way right now? Would you even have those numbers?

I don’t have it at my fingertips, I mean, because we deal with them in so many different ways. Many ask for assistance. We’re not like the FBI here. We’re a relatively small staff of senior investigators, but we work very closely with organizations like the DOT [Department of Transportation], Office of the Inspector General, the General Accountability Office. They have large staffs of investigators, so we work very closely with them. …
But there are several dozen cases currently that are active right now just in FAA.

That seems like a lot to me.

Let’s talk about Flight 3407. … In a sense, what happened with Continental 3407 maybe shouldn’t be a surprise to us.

I hate to say that, because it’s always a surprise. It’s been a long time since I’ve been as disturbed by the revelations that have come out of an accident as I have been with 3407. It is a worst case, your absolute most awful nightmare of what can happen in this environment. And you wonder how something like that can happen in this day and age.

What should we take away?

There are holes in the system. … There’s a model that I like to use … called the “Swiss cheese model.”
The Swiss cheese model is that the layers of Swiss cheese represent redundancy. Every single layer of Swiss cheese that you stack up is a barrier that keeps a mistake from slipping through the system. If you stack up several pieces of Swiss cheese, the probability is you can hold that up, and you’re not going to see through. But sometimes you stack up the Swiss cheese in a certain way that you can pick it up, and all the holes line up.
That’s kind of a metaphor for what happens in an accident scenario. People make mistakes all the time. I mean, if you talked to Sully, and Sully were sitting in this chair, Sully would tell you, “Oh, yeah, I make mistakes all the time.”
Every time I fly, I’ve made a mistake. I don’t know about you.

Every time.

Every single time. Every single flight I’ve ever flown, I’ve made a mistake. But it’s been a minor mistake.
Sometimes they slip through the cracks. You have a weak link. In this case, we had a couple of weak pilots — weaker than average. There were physical-state issues with them. There was hardship associated with where they had to commute from, because they couldn’t afford to live in the area that they were based. There was weather.
None of those things were the single cause of the accident. But when you added them all together, you had the classic Swiss cheese case, and the errors were compounded, and they were allowed to slip all the way through, and it caused the accident.

But in many ways, it just is a reflection of so many things that are wrong with the industry right now, isn’t it?

It is. It’s become the symbol of everything that’s wrong with the industry, and that’s why we’re having this animated public policy discussion. We’re going through that today.

The term “watershed” comes out frequently. Is this a watershed accident?

I think it is. I think it is. Certainly for this decade, it is the watershed accident.

And why is that?

It’s the one that I think is going to have the greatest effect on FAA policy. … As a result of this accident, we’re going to get something fundamentally different in terms of flight and duty cycle guidelines.
I think there’s going to be new requirements for training. There’s going to be new requirements on the relationship between the major carriers and their code sharing partners. There will be new requirements for pilot training, more than likely stricter requirements for pilot training and experience.
Don’t know what we’re going to do about the pay, given the economic state of the airline industry, but there will be attempts to try to address that as well.

That expression “written in blood” comes to mind here. People had to die for that.

Yeah, yeah.

And you could see this one coming, couldn’t you?

Yeah. Sometimes you sit around, and you hold your breath. … In any system, some people have more talent than others. Some people are better than others. And you hope that you don’t have the wrong two people together on the wrong night and in the wrong weather conditions, in the wrong place and when they’re tired.
And you hold your breath because you see incidents, and you see issues every day, but the system catches them.

The Frontline edited transcript continues later, with a discussion of Colgan and Valujet…

[Tell us about your first encounter with FAA safety inspector and whistleblower] Chris Monteleon.

Mr. Monteleon sent me an e-mail within a few weeks after the Colgan accident and introduced himself as a current FAA employee and a former principal operations inspector [POI] for Colgan. … So I talked to him on the phone, and ultimately, he came into the office.
Mr. Monteleon informed me that he had been removed from his principal operations inspector position overseeing the Colgan certificate, and his belief was that he was removed because the airline was complaining under the Customer Service Initiative that we’ve discussed. … He claimed he was removed as a result of the carrier thought he was too tough. We had a long discussion about that. …
The aircraft that was involved in the Colgan accident was a relatively new aircraft for this airline. Whenever a new aircraft type is introduced to an airline, there’s a long process that they have to go through for training and qualification.
Mr. Monteleon was in charge of overseeing that process. He made me aware of the fact that he had on a number of occasions communicated to his FAA superiors that this operator was having difficulty with their training program, and he was seeing a lot of things that he was concerned about.
Those were the allegations, and we discussed it with the FAA. We wanted to discuss it with the NTSB [National Transportation Safety Board], but the NTSB is still in the process of investigating the accident. We honor and respect their system and try not to interfere with their investigation in any way. And that’s the situation that we’re in today.
The NTSB investigation is not complete. I do know that the NTSB has talked to Mr. Monteleon. The DOT inspector general has talked to Mr. Monteleon. What he alleges is of great concern, because it’s exactly what we saw at Southwest, and it’s the kind of thing that has to stop. It’s unacceptable.

And what he’s alleging is that he would see things wrong, and people upstairs in Washington, or wherever he took it, wouldn’t pay any attention.

That is the nature of his allegation.

And what kinds of things is he alleging?

He said that there were major holes in the training program; that they weren’t preparing pilots properly to fly the aircraft; that management wasn’t providing the proper manuals, the proper checklist. In other words, they weren’t doing things the right way to run an airline, and that he continued to press management to make corrections. He tried to use the FAA’s traditional enforcement role to bring Colgan into line, and he claims he was rebuffed by his superiors.

So what Mr. Monteleon suggests in his allegations means that the things that were wrong that led to the Continental 3407 crash were known to the FAA.

… That’s the substance of his allegations — that he saw issues at the airline that ultimately ended up being factors in that accident.

This accident was totally preventable.

I’m not sure we can say that.


I mean, yeah, in some sense. But I’m not sure that I can go from Mr. Monteleon, … had all of his suggestions had been acted on, I can’t say with 100 percent certainty that the accident wouldn’t have happened, because we don’t necessarily know. Those two individuals could still have ended up pairing up on the same night.
Your question is headed in the right direction. You can say that Mr. Monteleon pointed out things that should have been corrected at the airline, that could have increased the probability the accident never would have occurred. …
I mean, the FAA might say that: “Well, we didn’t remove him because of him pointing out things that were wrong at Colgan. We removed him for another reason.” They may say that.
I’m not sure where the truth lies at this point, but Mr. Monteleon’s allegations must be taken seriously, must be evaluated, and if proven correct, then that’s very disturbing. …

And if Continental had been in there minding the store a little bit, they might have seen these same things.

That’s correct. They should have been overseeing that operator to a much higher degree than they were. They might have been able to effect changes that would have kept the accident from occurring.
There were so many things in that accident. I mean, which part of that accident do you want to address? Because every single one of them are disturbing and could have caused the accident.
There’s the fatigue thing. There’s the commuting thing. There is the co-pilot-had-never-had-any-experience-on-icing-conditions thing. There’s the violation of the sterile-cockpit thing.
If Continental had just done two of the things, if Continental check pilots had been riding along in the cockpit and told Colgan that “We’ve noticed that there is a significant lack of discipline in many of your cockpits,” … that’s an example of how a Big Brother carrier can intervene.
Had they done that, and had they observed that behavior or some other kind of nonprofessional behavior, and had they gone back and met with the vice president for flight operations for Colgan, saying, “I’m very disturbed about the level of discipline we saw in your cockpits,” don’t you think that would have had an effect?

I would hope so.

I absolutely would guarantee that it would have had an effect. Maybe not immediately, but that kind of supervision, that kind of relationship needs to exist, because, again, we’ve discussed this. It was Continental that sold that ticket. Continental sold that ticket, not Colgan. People who bought that ticket thought they were flying on Continental, and they thought they were buying Continental’s safety. Most of them probably had never heard of Colgan. …

[What happened with ValuJet?]

… You can track it right back to the cozy situation that we uncovered at Southwest Airlines. FAA, prior to ValuJet, had a dual mandate. … The Federal Aviation Act of 1958 created the FAA, and it gave the FAA two primary missions: one, safety; two, promote aviation — in no particular order. …
ValuJet was what we called at the time the “virtual carrier.” It was hard to go to ValuJet and lay your hands on what was their operational procedure center or where was their training center or where was their reservations or where were the pieces of the airline that represent the infrastructure that makes an airline work? Well, there wasn’t one, because they didn’t have them. Everything was outsourced.
And they were growing by leaps and bounds. They were buying used DC-9s, and they were pumping them into the fleet. As I’m sure you know, as an experienced pilot, just because it’s a DC-9 doesn’t mean it’s going to be standard to your other DC-9s, because the DC-9 — and any aircraft, for that matter — is typically, more so in the past, is custom-ordered. If you want your switches to flip to the left instead of the right, you can order it that way.
And so there were about seven or eight configurations of DC-9 in that fleet. And so I’m a pilot flying for ValuJet, and I show up, and I’m flying a configuration that was originally ordered by Northwest years and years ago. And then for my next segment, I switch airplanes and fly one that has a totally different cockpit and was operated by USAir/Allegheny Airlines for many, many years.
The FAA did not insist on standardization. The FAA’s interest in that case was promoting aviation, because it was a very popular thing to do at the time — you know, “We want more competition; we want to see more ValuJets.”
So the FAA was actually helping the ValuJets of the world get certificates, and that was cozy Chapter One. They were being very, very close to the carrier.
ValuJet caused the Congress and my committee — and Chairman Oberstar was very heavily involved in this — to remove the FAA’s promotion-of-aviation mandate.

And that was a significant thing to do, wasn’t it?

It was a watershed accident [in the Florida Everglades in 1996]. It was the accident that was responsible for removing the FAA’s mandate. … ValuJet was being viewed almost as one of the regionals as we’re viewing it today. It wasn’t a regional; it was a new entrant, but it had the same parallels. New entrants were being cut some slack so they can get started and get up to speed.

So while that’s not a part of the mission statement anymore, is it still there, though, that notion that “we’re here to promote aviation”?

Well, absolutely. I mean, imagine our shock when we uncovered the Customer Service Initiative. That sounds like promotion of aviation to me. …

One of the things that’s come to light out of Colgan 3407 is this issue of manuals — the manuals not being up to date, and a hodgepodge of manuals. … That’s actually a big deal, isn’t it?

Oh, it’s a big deal. The manuals provide everything that you need for the safe operation of the aircraft. Manuals drive the training program. Manuals are the reference book. It’s the encyclopedia of how it all works. Documentation is extraordinarily important in the aviation industry, as you well know. I mean, it starts with a checklist. You’re not supposed to remember what you’re supposed to do on final approach by memory. You’re supposed to read it off and actually make sure, verify that everything has been accomplished.
The manual is the beginning of that process. The manual is the bible, if you will, that provides direction for how that aircraft is going to be operated.
And you don’t necessarily always have a generic manual for a certain aircraft type, because American Airlines may be operating an aircraft in a different sort of route environment than Swissair. So typically the manufacturer, whether it be Boeing or Airbus, provides sort of a generic manual of the aircraft, and then each airline tailors it to its own particular operation. …

So having a manual, once again, is a big deal. And the fact that manuals are not up to date, not up to snuff, what does that say about an airline operation?

It says that management is not being diligent enough about preparing pilots to fly that airplane.

Loud and clear right there.

Yes, sir.
[1] This gets to the heart of Foushee, exposing his capacity to doubt whistleblowers, but incapacity to objectively ‘trust but verify’ the Whistleblower’s claims. He thus fails to see or act on FAA’s failures, which persist at the expense of those few Whistleblowers who speak up.

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