The New Age...It's Coming!

In case you did not notice, the FAA, State Department (Department of Transportation), and the European Aviation Safety Agency (EASA) entered into another aviation bilateral agreement in June. This new agreement is called the Bilateral Aviation Safety Agreement (BASA).

You may also recall that recently Mary Peters, Secretary of Transportation, signed an agreement which is described as the “open skies” agreement that essentially allows the European Union (EU) airlines unfettered access to our U.S. market. In addition, there are many more details to that agreement that do not bode well for our industry. A previous article, Open Skies-European Union – United States Air Transport Agreement (July 2007), touched on that subject. At that time the EU Vice President for Transport stated, “the objective of our negotiations will be additional traffic rights (for the EU) and fewer (read that as no) restrictions on European ownership and control of U.S. air carriers.”

This is all done in the name of harmonization. But make no mistake about it … there are some serious implications floating out of this current arrangement that seem to look more and more like an effort by EASA to create a single management agency for all of world aviation.

As you might have guessed by now, the EASA is essentially an organization that only recently was founded to do the same thing as our FAA, but more so. EASA continues to grow by leaps and bounds and has a major presence in Washington, D.C., in order to lobby aggressively for its continued intrusion into our aviation activities. Now, by merging its safety activities with the various countries belonging to the EU (27 at last count), EASA continues its relentless move to control the aviation activities of more and more countries around the world, and more importantly, I believe, will continue to threaten the independence of the FAA.

BASA
This latest bilateral agreement, BASA, was signed by our FAA Administrator and the European Commissioner for Air Transport, Antonio Tajani.

The agreement expands the relationship of the FAA and EASA to now include exchange of what may be confidential safety information (proprietary to air carriers) with EASA and whoever else in Europe has access to this information. Not only will the information be exchanged freely, but included is a reciprocal acceptance of safety (crash reports) findings regarding design and manufacturing problems, continued airworthiness issues, and inspection and oversight of repair stations. Does this mean that the EASA will be inspecting U.S. repair stations as well as its own? The FAA says that it will be relieved of the oversight responsibility on our aircraft regarding maintenance and design certification work on U.S. aircraft in Europe. Just what is this supposed to mean? The FAA goes on to say that the agreement will create a better harmonized safety system. There’s that word again.

The reports I have read concerning the acceptance of this agreement related some reservations by U.S. manufacturers regarding the fees that EASA was going to charge for “its” service in providing what the agreement calls for — by way of attention to the job of looking after U.S. interests in Europe and elsewhere, I presume. It’s like becoming a member of a big club that we really don’t need and the dues are becoming oppressive.

Have any of the politicians even asked why we need these people and why we should have to pay for services that we can do very well by ourselves? I, for one, am continually amazed at how our politicians (and I include FAA administrators) continue to give away our jobs to European organizations without any thought on the impact here at home. All the FAA employees and others may soon be working for the Europeans and be subject to their rules and regulations without even knowing it’s happening.

Proprietary information?
One observer in our industry said, “We view this strategic partnership between the United States and the European community as a real milestone that will advance our shared safety visions.” You tell me what shared safety visions means …

FAA (acting) Administrator Sturgell said, “Safety data exchange would become routine and more comprehensive.”

Did anyone think to ask Southwest Airlines, or American Airlines, or Continental, or others if they thought it was a good idea to exchange sensitive safety information with European competition? We have been told continually that safety data is a proprietary item to our various airlines. I would have to say that it is provided to the FAA on the assumption that it would be used internally within the FAA and not passed on to EASA or anyone else without specific permission of the air carrier.

French criminal case
The example of the criminal trial now in progress in France is a case in point. Few have noticed that a French judge has ordered that Continental Airlines and some technicians, engineers, and others stand trial in a French court for manslaughter regarding the criminal investigation into the Concorde crash in July of 2000 at Paris. Continental is charged with criminal negligence involved with the maintenance of the DC-10 from which a piece of metal fell. The Concorde then ran over the piece of metal on the runway. A wheel threw the piece of metal up into the Concorde wing and it caused a fuel leak that destroyed the aircraft and killed 113 passengers and crew.

Now, the question again arises about safety and investigative information regarding this accident under the terms of the BASA agreement. Does all the safety information that might have been shared or would have been shared under BASA enter into the evidence presented in this criminal trial?

Much has been said in the United States about using safety investigation data as evidence in criminal trials. We have had a number of criminal trials in this country regarding maintenance activities. If there is a free exchange of investigative information under the terms of the new BASA agreement, what will happen to this data when the criminal trials start in Europe against American citizens and corporations?

The use of aviation safety and investigation data acquired during crash investigations has long sought to be prevented from being used in criminal trials both in the United States and abroad, with little success to date. The theory is that the threatened use of this investigative data as evidence against defendants would act to prevent a full and open investigation of aircraft accidents. There is no dispute on this point!

The criminalization of conduct in aircraft accidents and the use of safety data obtained through so-called bilateral agreements should be specifically excluded from any form of criminal proceeding within the EU and U.S. systems.

What do you think? Send your comments to aerolaw@att.net.

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an A&P certificate and is an ATP rated pilot. E-mail: aerolaw@att.net

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