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Newsletter May 2013: Newsletter FLO – Aviation

 

Arthur Flieger, Attorney at law Flieger Law Office bvba with the cooperation of Stijn Brusseleers, Attorney at law Flieger Law office bvba

THE U.S.-EUROPE SAFETY AGREEEMENT

On March 15th, 2011 the United States of America and the European Community completed a bilateral aviation safety agreement (BASA). One can say that it is the synthesis of several simultaneous developments of U.S. – EU aviation regulatory harmonization.

EASA and FAA are the “technical agents” for the agreement ( article 1e ). The agreement binds the United States, 27 EU member states, and Norway, Iceland and Switzerland, which have designated the European Aviation Safety Agency as a technical agent. The agreement became effective on May 1st, 2011.

The agreement was signed in 2008 by the Vice-President of the European Commission and by the FAA administrator. A key feature of bilateral aviation safety agreement is reciprocal acceptance and not mutual recognition.

The EASA’s constitutional regulation, European Community Regulation (EC) No. 1592/2002 (July 15,2002), refers to “recognition agreements” and European officials sometimes speak of “mutual recognition agreements.” Mutual recognition of standards is a concept built into World Trade Organization agreements, especially the government standards code. It is misleading when applied to aviation safety because “mutual recognition” implies that Party A recognizes the approvals and findings of compliance made by Party B because Party B recognizes those of Party A. “Reciprocal acceptance” is more accurate. The BASA is structured so that each party recognizes the other’s safety work because it meets the applicable safety standards.

In case of aircraft maintenance , each side performs in its territory safety oversight of aircraft maintenance facilities that are certificated by the other side. Under the 15 safety agreements with European States that are being supplanted by the U.S.-EU Safety Agreement, the FAA does not issue certificates to U.S. repair stations to work on European-registered aircraft, but it inspects the facilities and makes findings with respect to their compliance with European regulatory requirements. The Europeans will in their turn inspect repair stations in Europe that have certificates under Part 145 of the Federal Aviation Regulations and make findings with respect to Part 145 compliance ( 14 C.F.R. pt. 145).

EASA has assumed competence for maintenance oversight for all the European Union. Reciprocal acceptance of findings makes all the more sense because most repair stations have multiple certificates. FAA inspectors already visit European-certificated repair stations in the United States to oversee work on U.S.-registered aircraft.

Under the U.S.-EU Safety Agreement, the FAA and EASA issue approvals of their respective foreign repair stations but delegate oversight to each other, including compliance with special conditions.

On January 31st, 2012 U.S. congress enacted a four-year reauthorization bill for the FAA, and the bill requires the FAA to ensure that part 145 repair stations located outside the United States are inspected annually by Federal Aviation Administration safety inspectors, without regard to where the station is located. This all in a manner so that the United States obligations remain consistent under International agreements.

This provision also requires the secretaries of transportation and state to request International Civil Aviation Organization (ICAO) Member States to establish international standards for drug and alcohol testing for aircraft maintenance workers. The FAA is preparing a rulemaking to implement the law’s drug and alcohol testing provision. Conclusion of the Agreement was also delayed in part due to U.S. manufacturers’ concerns about EASA’s validation fees and charges. The two sides, however, have since established a Validation Fees Team to develop agreed principles for fees. Now, even while the Agreement is being implemented, delays in a pending Transportation Security Administration rulemaking have effectively prevented the FAA from approving new foreign repair stations.

2. What about the role of EASA?

EASA was established in 2002 by regulation to execute oversight responsibilities that were being centralized in the EU ( European Community Regulation (EC) No. 1592/2002 ( July 15, 2002).

It is charged with ensuring a high and uniform level of safety in civil aviation by implementing common safety rules and other measures. EASA has a division of responsibilities with the national aviation authorities ( NAAs) of the Member States to implement legislation adopted by the EU institutions.

EASA executes type certification and associated State of Design (SOD) responsibilities directly. To the extent that NAAs may be called upon to assist, they are acting on behalf of the agency, which is acting on behalf of ICAO contracting states. In other areas such as repair station certification, pilot licensing, certificates of airworthiness, and air carrier certification, the NAAs continue to perform those functions directly on behalf of their respective Member States within their territory. This work is done not on behalf of EASA but under EASA-drafted rules and under EASA’s supervision. Outside the EU, EASA is directly responsible for certification and surveillance of, for example, production and maintenance organizations on behalf of the EU Member States acting in common through the EU.

It should be clear that EASA promulgates nonbinding guidance materials. The agency’s management board is composed of representatives of the 27 EU Member States and the Commission. EASA has assumed the responsibilities of the former Joint Aviation Authorities (JAA), which terminated in June 2009, but EASA is not a successor in either legal or institutional terms.

As the European Commission assumed its initial regulatory authority from the Member States, it adopted parts of the JARs as European law. Since EASA’s creation, the EC has expanded the JARs into new subject areas under developing EU law.

In 2009, a package of measures for the Single European Sky broadened EASA’s oversight responsibility to airdromes, air traffic management, and air navigation services.

EASA has significant limitations, of course, in comparison to a national civil aviation authority like the FAA or its counterparts in Canada, Japan, Australia, or China.

EASA should not be viewed as an isolated body but as a key part of the EU aviation safety system, which has strengthened and simplified the management of safety in Europe. Regulations that are binding and directly applicable in all Member States are produced, translated, and published centrally. New aircraft and other products have just one type certificate instead of 27. Standardized inspections ensure the uniform implementation of requirements, and that safety problems common to all Member States are identified and tackled through the European safety program.

3. Features of the U.S.-EU Safety Agreement

The United States of America and Europe have established an Bilateral Oversight Board (BOB) as the steering group that monitors and manages implementation activities. It provides a forum for the discussion of safety issues and consultation on urgent problems.

The Safety Agreement contains two annexes which are governed by article 5 of the agreement.

Annex 1: Airworthiness and Environmental Certification, is the IPA.

Annex 2: Maintenance, is the MIP. A certification Oversight Board manages activities under Annex 1 and the Joint Maintenance Coordination Board oversees work under Annex 2. The extensive technical documents executed pursuant to the annexes effectively make the Agreement a three-level structure.

The Agreement permits unilateral emergency safety actions and allows a party to suspend acceptance of particular safety findings about which it might have concerns. The Agreement also includes a provision on the exchange of safety data for the first time in a BASA. U.S.-EU Safety Agreement.

This all includes a lot of significant broadening of U.S.-Europe aviation safety cooperation. Transitional arrangements are particularly complex because not all of the provisions can be applied immediately to all of the Member States on the European side. At least a few of the existing agreements will continue in force indefinitely.

In the European perspective the U.S.-EU Safety Agreement is an international treaty like the EU treaty.

The U.S.-EU Safety Agreement and the EU treaty are both binding on the EU and the Member States and thus render them liable at the international level. This implies that secondary EU law, such as the EASA Basic Regulation (EC Regulation No. 1592/2002), may be overridden by the Agreement where they are inconsistent.

4. Epilogue

The next FAA and EASA conference will held in Paris in June 2013. It is all the more influential because the Agreement’s IPs apply the national safety standards of the two sides, not the idealized, common-denominator standards and recommended practices promulgated by ICAO. As a reminder: Standards and Recommended Practices (SARPs) are promulgated by ICAO pursuant to its authority under Articles 37 and 38 of the Chicago Convention.

Meanwhile, the transatlantic partnership continues to be the leading international model for safety regulatory and oversight cooperation. There is even some interest in a project that was undertaken and abandoned in the last century – a multilateral airworthiness code. The prospects for bilateral and multilateral technical cooperation in aviation safety have never been brighter.

We will be at le Bourget Airshow from June 17th thru June 23rd 2013. Come and visit our stand.

 

For further information and comment, please contact Arthur Flieger at Flieger@fliegerlaw.com, Website: www.fliegerlaw.com, telephone: +32 3 238 77 66

 

Copyright A. Flieger
This publication is defined to provide accurate and authoritative information in regard to the subject matter covered. It is transmitted with the understanding that the publisher is not engaged in rendering legal, or any other professional services. If legal advice or other expert assistance is required, professional services should be sought. You can always contact A. Flieger at flieger@fliegerlaw.com.