Regulatory and International Processes applicable to Boeing 737 MAX 8 grounding by FAA –2019 #5

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FAA grounds all Boeing 737 Max planes effective immediately

 There are procedures and standards which should have been followed

EASA and others grounded planes without basis

FAA took action when it had proof

Aircraft certification has been (the past tense is sadly intentional) governed by regulatory standards to which engineering expertise is applied to assure that safe aircraft are then operated. The process, with which the applicant must comply and which the regulator must assiduously apply, has been defined to minimize, if not eliminate, outside influences (economic, geopolitical, trade, etc.) from involvement.

The tragic B 737 MAX8 crashes, tragic as they are, seems to have precipitated a new approach to international aircraft certification. This is NOT to comment, in any way, on the merits of the technical assessment of the crashes. It is merely an arid recitation of the processes in place.


  1. EASA issuance of an Emergency Airworthiness Directive without citation of a specific airworthiness issue

ADs are not allowed to involve the legalism res ipse locquitor; the Civil Aviation Authority  is expected to instruct the Type Certificate holder what is wrong. EASA’s order cites no basis for its action.

EASA Order re B737 MAX8



  1. British Caledonian Airways Limited, Petitioner, v. Langhorne Bond665 F.2d 1153 (D.C. Cir. 1981), has found that the FAA could not legally void the TC held by foreign operators of the DC-10. When an American Airlines’ DC-10 lost an engine and crashed in Chicago, the FAA issued an emergency order prohibiting all DC-10s from flying within, to or over US Airspace. The European airlines sued in the DC Circuit and won a decision, the Court opined:

 The petitioners contend that the Administrator’s actions in issuing SFAR 40 violated the provisions of several international agreements, and in particular Article 33 of the Convention on International Civil Aviation (the Chicago Convention) …The petitioners say this in turn constituted a violation of sections 1102 of the Federal Aviation Act of 1958. 49 U.S.C. § 1502 (1976). We agree.

The petitioners contend that the FAA Administrator’s refusal to rescind SFAR 40, after the foreign aviation authorities revalidated the airworthiness certificates of their DC-10s, violated various multilateral and bilateral agreements between the United States and the petitioners’ governments, and that the refusal was in turn a violation of section 1102 of the Federal Aviation Act of 1958. 49 U.S.C. § 1502 (1976).3

Article 9 permits a country to safeguard its airspace when entry by all aircraft would be dangerous or intrusive because of conditions on the ground. Article 9 does not allow one country to ban landing and take-off because of doubts about the airworthiness of particular foreign aircraft, in derogation of Article 33.

If doubts about airworthiness exist, one country may refuse to recognize another country’s certificate of airworthiness, but only if the certificating nation has not observed the minimum standards of airworthiness established in Annex 8 pursuant to Articles 33 and 37 of the Chicago Convention. As we have emphasized, the Administrator at no time questioned the foreign governments’ compliance with the minimum standards of airworthiness.

At no time has EASA questioned the certification competence of the FAA.

  1. EASA has executed a Bilateral Airworthiness Safety Agreement which recognized the FAA’s competence

The agreement requires EASA to give notice to the FAA if there are questions as to technical competence.

us easa BASA TERMS


  1. The President orders the FAA to ground the Boeing 737 MAX 8

POTUS grounding B-737 MAX8

President Trump on Wednesday announced the U.S. is grounding the Boeing 737 Max 8 and 9 planes after two fatal crashes involving the aircraft.

“Planes that are in the air will be grounded if they are the 737 Max. Will be grounded upon landing at their destination,” Trump told reporters at the White House.

Boeing stock fell by approximately 2 percent during, and in the immediate aftermath of, Trump’s remarks.

  1. The Administrator[1] has the sole power to issue an order to ground aircraft

FAA Administrator

49 U.S. Code § 106.(f)(2)(A)(iii)

(2) Authority of the ADMINISTRATOR. —The Administrator—

(A) is the final authority for carrying out all functions, powers, and duties of the Administration relating to


(iii) except as otherwise provided in paragraph (3)[2], the promulgation of regulations, rules, orders, circulars, bulletins, and other official publications of the Administration;

  1. The FAA issues an Emergency Order

The FAA issued an Emergency Order and cited concerns about the similarities between the Lion Air and Ethiopian flight profiles.[3]

FAA emergency order

March13,2019 19 3:00pm Update

Statement from the FAA on Ethiopian Airlines

The FAA is ordering the temporary grounding of Boeing 737 MAX aircraft (PDF) operated by U.S. airlines or in U.S. territory. The agency made this decision as a result of the data gathering process and new evidence collected at the site and analyzed today. This evidence, together with newly refined satellite data available to FAA this morning, led to this decision.

The grounding will remain in effect pending further investigation, including examination of information from the aircraft’s flight data recorders and cockpit voice recorders. An FAA team is in Ethiopia assisting the NTSB as parties to the investigation of the Flight 302 accident. The agency will continue to investigate.

FAA administrator on grounding Boeing 737 Max: ‘We didn’t feel global pressure’

Christine Wang | @christiiineeee

Published 2 Hours Ago Updated 1 Hour Ago

Watch CNBC’s full interview with FAA Acting Administrator Daniel Elwell   1 Hour Ago | 08:33

Elwell on CNBC


The Federal Aviation Administration grounded Boeing 737 Max planes after receiving new data, not because the agency gave into pressure, Acting Administrator Daniel Elwell told CNBC on Wednesday.

Earlier, the agency grounded all Boeing 737 Max jets in the U.S. while it investigates the Sunday crash of Ethiopian Airlines Flight 302, which killed all 157 people on board. That crash came less than five months after a Lion Air 737 Max 8 plunged into the Java Sea, killing 189 people.

The FAA’s decision to ground the planes marked a stunning turnaround for the U.S., which has stood by the American-made aircraft as dozens of countries around the world ground the planes.

Elwell said the FAA was “certainly aware” of decisions other countries made to ground the planes. But the official emphasized, “We didn’t feel global pressure.”

“As I said, we are a data-driven, action-oriented agency and we don’t make decisions about grounding aircraft or regulating or even shutdown decisions for airports or aircraft without actionable data. And in this case, the actionable data didn’t arrive until today,” Elwell said in an interview on “Closing Bell.”

President Donald Trump told reporters earlier that he was ordering the planes to be taken out of service. He said he made the decision after speaking with Boeing’s CEO, Transportation Secretary Elaine Chao and Elwell.

But Elwell clarified that the emergency order grounding the aircraft was not issued by the White House.

“So the decision is an emergency order to ground the airplanes and that is authority rested in the FAA with me,” he said.

While Elwell said he did make the decision, he consulted experts as well as Chao and the White House because of the magnitude of the order.

  1. Flight Safety Foundation’s Statement

FSF logo

Flight Safety Foundation Issues Statement on Grounding of Boeing 737 MAX


ALEXANDRIA, Virginia — Dr. Hassan Shahidi, president and CEO of Flight Safety Foundation, issued the following statement today in response to the grounding of the Boeing 737 MAX following Sunday’s tragic crash of Ethiopian Airlines Flight 302.


“This globally haphazard approach to an important airworthiness issue was most unfortunate, but we understand the need to reassure the traveling public.

“We continue to believe, however, that global aviation safety is best served by timely, harmonized decisions based on facts and evidence, not conjecture, politics, or media pressure.

Moving forward, we must allow aviation safety professionals — investigators, regulators, engineers, and pilots — to calmly and objectively analyze the data, collaborate, and implement permanent, corrective fixes to ensure a tragedy like this can never happen again.”



peaceful aviation globe

[1] Contrary to Sec. LaHood’s claim that he grounded the B-787 fleet , it would illegal for anyone other than the Administrator to issue such an order

[2] Subsection (3) relates to actions with impacts on state and local governments.

[3] This bit of information was first reported by Transport Canada in its Emergency Order.

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2 Comments on "Regulatory and International Processes applicable to Boeing 737 MAX 8 grounding by FAA –2019 #5"

  1. This was really good.

  2. Absolutely concur

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