Deleted for readability - see above for full section
One may argue, that FAA breached 18.104.22.168 of bilateral, so EASA exercise rights outlined in 1.13.70.
If you are reading the Technical Implementation Procedures (which is where those section numbers come from); then you should know its a lot more complicated than that; and I believe your referencing 1.13.70 is in the wrong context.
For people who are interested in the details (all 101 pages of them)https://www.easa.europa.eu/sites/defaul ... nd%202.pdf
1.3.1: The TIP is based on continuous communication and mutual confidence in the FAA’s and EASA’s technical competence and ability to perform regulatory functions within the scope of the TIP. The FAA and EASA, when acting as the Authority for the importing State, shall give the same validity to the certification made by the other, as the Authority for the exporting State, as if they were made in accordance with its own applicable laws, regulations, and requirements. When a finding is made by one Authority in accordance with the laws and regulations of the other Authority and the TIP, that finding is
given the same validity as if it were made by the other Authority. Therefore, the fundamental principle of the TIP is to maximize the use of the exporting Authority’s aircraft certification system to ensure that the airworthiness and environmental requirements of the validating Authority are satisfied.
You are correct that a key section is 22.214.171.124:
"To avoid unnecessary duplication of efforts, the FAA and EASA need to establish and maintain confidence in each Authority’s technical ability to make findings on behalf of the other Authority. At the same
time consistent application by the FAA, EASA and the EU member state Aviation Authorities (AA) of the Agreement in all areas covered by Annex 1 of the Agreement has to be ensured as part of the COB
It does not take too much further reading to understand that this is done through audits and samples, and that there is a resolution process to be followed in the event of an differences of interpretation or unsuitable resolutions of findings (Section 1.9).
Should the issue be significant enough that it affects multiple nations it can be elevated to a joint national board representing Brazil, Canada, European Union, and United States of America to ensure that key parties are in harmony and agreement on the resolution per 1.9.4
1.9.4: Issues that are worked through the resolution of conflicts process between the FAA and EASA should be evaluated to determine if coordination to the CMT is appropriate. The CMT consists of the FAA, EASA, Transport Canada Civil Aviation and the Brazilian Agência Nacional de Aviação Civil and is chaired by the Directors of each Authority’s certification group. Coordination to the CMT should be considered if resolution of the issue would help to harmonize how all four Authorities address the issue in a consistent manner on future projects. Where harmonization is not possible, the differences should be clearly identified. The CMT strives to work certification issues common to all four Authorities in a collaborative manner to provide harmonized solutions that work for each Authority. Therefore, when a certification issue requires resolution at the policy level to standardize or harmonize among all four Authorities, it is recommended that the issue be elevated through the CMT structure.
The Lion Air Crash was October 28, 2018: It is now known that the Pilot In Command was successfully controlling the aircraft with a malfunctioning MCAS system for a number of minutes (approximately 10 minutes if I recall correctly) It is now known that the PIC manually performing numerous trim up commands to counteract the MCAS trim down commands; before he decided to hand the controls over to the Co-Pilot so that the Pilot could consult books and charts for troubleshooting. The Co-Pilot quickly lost control as he did not manually input trim up commands at the same rate as the pilot did, and crashed.
As such, since the aircraft flew for many minutes within essential control (could be seen by ground radar before the data recorders were found) questions could be asked about other factors and other potential causes of the crash. Recovery of the data recorders took time as they were underwater and in muck.
The Ethiopian Crash occurred March 10, and within a few days it was known that MCAS was likely involved due to the jack screw position and there was no sustained period of level and essentially in control flight (flight appeared to be out of control since the end of take off climb). As with all crashes questions have been raised about other factors; but, MCAS issues appear prominent and likely significant.
In neither case has the investigation report been issued at this time which would discuss the other factors involved in the crashes and provide key findings.
On March 12 EASA grounds the 737max when provided the information that MCAS was involved at least a factor in another crash.
On March 13 FAA grounds the 737max.
EASA clearly has the authority to ground the 737max given the situation within the Technical Implementation Procedures (several possible sections could be cited).
The March 13 FAA grounding by my reading essentially triggers section 1.13.29 of a "Finding"; and also involves Section IV: Continuing Airworthiness (see below)
1.13.29: “Finding” means a determination of compliance or non-compliance to the applicable airworthiness or environmental standards as the result of the FAA’s review, investigation, inspection, test, and/or analysis. Refer to paragraph 1.13.70, "Verification of Compliance", for EASA.
That then triggers section 1.13.70 (it is not by my reading triggered by 126.96.36.199 - that could only trigger a section 1.9 process if the various audit processes identified an issue)
However, 1.13.70 only specifies verification of what the FAA is doing to address the situation:
1.13.70:“Verification of Compliance” means the involvement done by EASA when reviewing compliance to the applicable airworthiness standards. This verification can be a desk review (certification documents review), an inspection, participation in flight or ground tests, and participation in audits. Refer to paragraph 1.13.29, "Finding", for the FAA.
As it relates to certification, EASA is allowed to add items for USA built aircraft that the FAA regulations do not address that are in the EU regulations; and likewise the FAA adds some things in the US regulations that are not in the EU regulations for aircraft built in the EU. That is clearly identified in the Technical Implementation Procedures and why both regulators take some time after the other to normally certify an aircraft.
For Continued Airworthiness (the specific issue for the 737max) the United States is the State of Design (SoD) and the FAA is the authority. The relevant sections are below:
4.1.1: In accordance with Annex 8 to the Chicago Convention, the Authority for the SoD is responsible for resolving in-service safety issues related to design or production. The CA, as the Authority for the SoD, will provide applicable information that it has found to be necessary for mandatory modifications, required limitations and/or inspections to the other Authority to ensure continued operational safety of the product or article. Each Authority will review and normally accept the corrective actions taken by the CA, as Authority for the SoD, in the issuance of its own mandatory corrective actions.
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,