4.1.2: At the request of either Authority, the Authority for the SoD will assist in determining what action is considered necessary for the continued operational safety of the product or article. The Authority for the SoR retains sole authority for decisions on final actions to be taken for products or articles under their jurisdiction. The FAA and EASA will strive to resolve differences.
On April 1 EASA then sends a letter to the FAA stating:
1.Design changes proposed by Boeing are EASA approved (no delegation to FAA)
2.Additional and broader independent design review has been satisfactorily completed by EASA
3.Accidents of JT610 and ET302 are deemed sufficiently understood
4.B737 MAX flight crews have been adequately trained
I see no real evidence that the various procedures defined within for issues within the Technical Implementation Procedures for issues other than the other nations identified in Section 1.9.4 are involved.
By my reading and understanding Conditions 1 and 2 appear to clearly violate of the Technical Implementation Procedures and is way beyond Section 1.13.70 verification procedures (does anyone not think that the FAA is going to be triple cautious on ensuring that things are done right - and EASA (Brazil and Canada have the same rights) have the right to be in direct involvement in the verification process. The FAA represents the SoD, and is granted sole authority to decide the final actions taken.
Condition 3 seems to be ambiguous on if its adequately covered by the Technical Implementation Procedures, and Item 4 is clearly within the purview of EASA for operations by EASA operators.
Now reports early on in the process (months ago) indicated that the FAA was including input on process improvements for the review of the Boeing corrections to the MCAS issue; which is what the Technical Implementation Procedures set up to happen.
So, yes; it appears to me that EASA seems to be at least publicly setting themselves up as saying they don't trust the FAA and will no longer consider their certifications as actually valid; a violation of Section 1.3.1, which is the purpose of the Bilateral; is not going to honor Section IV in regards to continued airworthiness (the direct grounding issue) for the clearly stated responsibilities and rights of the FAA; and setting themselves up as Kingmaker - my rules, not the Bilateral rules for continued airworthiness and verification rights for a case like this.
If they actually act that way and implement their actions and approvals that way; then I think the Bilateral with the EU may die. Certainly, the EU cannot complain if the FAA then insist on things not in it for any further reviews of modifications or new aircraft from EU countries; or even suspending all approvals for EU aircraft without full US licensing review. I wonder what Brazil and Canada are thinking about how valid their bilateral actually is with the EU.
Can you show me any sections where the EASA has the right to alter the terms of the Technical Implementation Process on their own? They may of course withdraw with a 60 day notice.
Have a great day,
1) The FAA failed on the 737-8/9 MAX, certainly breaking the spirit of the agreement, if not some of the Technical Implementation Procedures items.
2) EASA did communicate to not have enough information about JT610 and ET302, possibly because of a breaking of the "continuous communication and mutual confidence" (1.3.1).
3) My understanding of 4.1.2 SoR is that EASA have the right to issue the 4 conditions that there require for the aircraft operating in EU.
I was to busy to respond to this yesterday:
Wording and Intent matter... and the issue is much larger than just the FAA EASA Bilateral as I suspect anyone who negotiates and implements international and agreements with the EU is watching this.
First: Can you tell me exactly how the FAA broke the spirit of the Bilateral Agreement, and cite the Technical Implementation Procedure items they have violated; which could not be fixed by the normal resolution process defined in the Technical Implementation Procedure:
I'll concede up front that Boeing mis-designed the MCAS. A key part of that error was an inadequate FMEA analysis and document. The FMEA document is one of the key documents that FAA reviews that says something is safe per the regulation standards of safety.
The FAA did not catch the error in the FMEA Document.
That is functionally what happened here. Everything else functionally flows from that (no need to train for a minor "augmentation" system only rarely expected to ever activate with no significant failure modes or consequences).
I am unsure if EASA would have caught it either having been personally involved in at least several FMEA reviews; which are not an easy task and require a lot of very specific knowledge about a system and failure modes (an awful lot of events have occurred over the decades by previously unknown failure modes or sequences - and the FMEA forms keep getting longer as those kinds of failure modes are added to them).
It is the magnitude of the resulting error made in the MCAS FMEA that is significant; but, I cannot believe anyone intentionally made that error or that the reviewers intentionally did not think through what they knew about the system and how it could fail, its seriousness, and the probability. But, make the error they did (and I am sure some of them were literally sick to their stomach when they realized how bad they goofed - I know I have been so on far less serious errors I have made in my life).
Somewhat recently, after Lion Air 610 and ET 302 Airbus and the EASA announced that a review of one of their Aircraft flight envelope performance found a problem with how the aircraft would respond in a corner of the flight envelope normally never entered (but possible to enter); and that an appropriate software update was being developed. Fortunately, this had not actually caused any major flight problems or a crash. I personally suspect that Airbus went looking for this kind of issue as a result of the Boeing mistakes on the 737max MCAS (one of the ways that significant events improve the industry); and posted that thought in the thread about this finding at that time (I don't have time to dig up the reference to that thread or the industry announcement- but anyone who has been following this forum for months will know of the tread and issue).
So this kind of error is not unique to Boeing or the FAA. The significance of the error appears at this stage (without the crash reports being issued) to be likely larger than any similar error in the last several decades. But, the type of error is not.
So why does making this error - in and of itself - imply a loss of confidence? The FAA held off grounding until they had evidence that the 2nd crash had at least the appearance of a similar issue between the crashes (the position of the jackscrew). I think that is reasonable. If the ET 302 crash was for other unrelated issues... grounding would likely have not been appropriate.
The FAA is legally bound by other international treaties and conventions not to share any knowledge they have of the Lion Air 610 and ET 302 crash. EASA cannot use that lack of sharing as a reason. EASA can approach the investigation boards directly for access if they have a legitimate reason. However, my personally having lead root cause investigations within the USA was that other plants had to show me that they really needed the information "now" for their safety - and we provided relevant information directly to the other affected plants as soon as we knew something that affected current operating safety (we didn't sit on critical information). I could easily see the Lion Air or ET Investigating board chairperson asking the EASA why they needed the information at this time; and after seeing the Bilateral concluding that only the FAA needed the information as they were the relevant party with the authority to make the decision on what fixes needed to be done.
The Technical Implementation Procedures have within them a defined process for either party to identify to the other party apparent shortcomings in their processes, and a way to resolve those shortcomings.
Key is the concept of auditing, advising, providing suggestions, etc; and not stating independent requirements that subvert the obligations and rights granted in the Bilateral.
As an example: My view is that Section 4.1.2 is that EASA has the right to suggest those 4 conditions to the SoD (The FAA); but not the right to independently demand condition 1 or 2 in addition to the FAA approval as part of their acceptance for Return To Service.
I also do not see how EASA can claim other rights in this Bilateral for these requirements. EASA is allowed to add independent requirements for areas that the USA Laws and FAA regulations do not appropriately cover to EU standards (vice-versa). However, given that the flight computer and MCAS was not independently reviewed with independent conditions on inital certification. It appears that the USA Laws and FAA regulations in this area are considered equivalent, and per the Bilateral the FAA's certification (and rectification) is to be honored.
EASA (Brazil and Canada) have the right to be directly involved and witnesses in the FAA directed Testing and other Verification of the fixes under 1.13.70.
Key point the languge matters:
EASA could say something to the effect we have suggested to the FAA testing for X,Y,Z which they have agreed to (and I have not heard the FAA refusing any reasonable actions in this case - in fact inviting and adopting suggestions); and we will be directly witnessing such testing to verify its adequacy. We, along with Brazil and Canada are reviewing the FAA approval process and making suggestions, etc. We will independently review and decide on training requirements for the EU airlines (which is a right they have).
That would say: We are working within the agreement to resolve this issue and ensure the aircraft is safe
Saying that we will require independent testing and set our own standards is not in compliance with the agreement - and I foresee will be very costly long term to EASA and the EU across many fronts.
I can assure you; that anyone who negotiates and implements international agreements have downloaded and read the Bilaterial - and is watching what is being said and done.
"So this is what the EU does if there is a problem... not follow and support the agreement; I guess we better ensure our next agreement has.... (and it will be more costly to the EU)."
As much as many of you may agree with what the EASA is doing. The way they are doing it - appears to not in compliance with the Bilateral - and those appearances count in far more places than the USA.
Have a great day,