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Jason Dickstein

Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.
Jason Dickstein has written 288 posts for MARPA

Treasury Makes It Easier to Comply, When Exporting

PMA manufacturers who are exporting their parts from the U.S. need to ensure that they remain in compliance with the U.S. export regulations.  In addition to the BIS and DDTC regulations that apply to aircraft parts, exporters also need to remain in compliance with Treasury Department regulations.

Some of those Treasury Department regulations include lists of people and entities that you ought not to do business with.  Every agency has multiple lists that you need to examine, but Treasury is doing something to consolidate its lists and make it easier to review them. This consolidation should make it easier to search to ensure compliance, whether you are searching on line or using a computer program to automatically research your business partners.

The Treasury Department office with jurisdiction over export programs is the Office of Foreign Asset Control (OFAC).  OFAC has a list of Specially Designated Nationals (SDNs) as well as other (non-SDN) sanctions lists. OFAC is now offering all of its non-SDN sanctions lists in a consolidated set of data files called the Consolidated Sanctions List. This consolidated list will include the following:

  • Non-SDN Palestinian Legislative Council List
  • Part 561 List
  • Non-SDN Iran Sanctions Act List
  • Foreign Sanctions Evaders List
  • Sectoral Sanctions Identifications List

OFAC announced that it plans to discontinue some of these lists as separate lists, so they will only be available as part of the consolidated list.

Persons seeking to check whether there are OFAC sanctions that might apply to their transaction should be sure to check their export business partners (by personal name and company name) against the Specially Designated Nationals List and the Consolidated Sanctions List.

One can also use the Sanctions List Search which consolidates both lists into a single searchable database. This tool is useful because it can automatically search for names that are close (bot not exact matches) and can be set to find matches with different levels of confidence (which will then be reviewed by a human to assess whether they actually match).

Exporters should also check the details of their transaction (including destination country) against the Sanctions Programs and Country Information page, which list sanctions programs based on country and on certain other criteria.

FAA Publishes Designee Management Policy for Public Comment – All Manufacturers Need to Review and Comment

Do you rely on a Designated Engineering Representative (DER) to approve data for your business? Do you use DMIRs for issuing 8130-3 tags?  If you do, then you know how critical designees can be to the parts approval process.  Often, though, designees are required by the FAA to do things that the FAA employees themselves are not permitted to do, like require paperwork that is not required by law or regulation (this can be a violation of the Paperwork Reduction Act), or impose standards of conduct that are not required by law or regulation (this can be a violation of the Administrative Procedures Act). When this happens, the designee has no choice but to obey the instructions from the FAA-Advisor … even if they would be illegal if undertaken by the FAA’s employees.

Want to make sure that designees are not used to do things that FAA employees can’t do (by law)?  The be sure to take the time to offer comments to the FAA Designee Management Policy that is now out for comment.  The FAA has issued for public comment a draft change to the guidance document affecting designees.  Although only parts are changed, it is a potential opportunity to comment on the entire document.

The original guidance is called “Order 8000.95, Designee Management Policy.” It was first issued in April of 2014.

This guidance document provides a wide variety of guidance on how to manage FAA designees. It has not and does not appear to cancel FAA Order 8100.8 (Designee Management Handbook), although some of the guidance appears to address some of the same issues as that guidance (failure to cancel 8100.8 might have been an oversight).

As a practical matter, designees (who are the people most directly affected by this guidance) will not be able to write comments that are critical to this guidance. This is because designees can be terminated for cause or without cause, at the discretion of the FAA. So the FAA can terminate a designee for exercising his or her First Amendment freedoms (as long as they come up with any other pretext for the action, including a termination ‘not for cause’). Designees are well aware of this and they regularly self-censor their comments because of the chilling effect that the FAA’s discretionary termination power has had. In some cases, designees have contacted me because they know that I will protect their anonymity.

The real-world issue us that designees rely on their designation from the FAA to ply their trade. If they are terminated (for-cause or not-for-cause) then they cannot simply be a designee for someone else. They need to choose a entirely different career path. So the process for reviewing designee termination is very important. And both the current policy and the draft policy are woefully inadequate, because they offer no standards for review, so the FAA employees are able to rubber stamp any termination decision on review. Honest review depends 100% on the personal integrity of the reviewing personnel – and there is no formal training for the employees who act as reviewers in that process (by comparison, state court judges typically attend judicial training).

The FAA’s failure to have effective standards actually undermines the FAA’s own interests. One example arises in the context of designee termination. The lack of effective standards means that individual FAA employees can cause the termination of a designee for any reason, including a reason that would have been considered to be illegal if it was used to terminate an employee, as long as the party who initiates the termination offers a pretextual reason. There is no formal inquiry into such pretext – it is taken at face value – and the VERY short time period for presenting a defense means that it is tough to be effective in assembling a defense: the full appeal including all supporting evidence must be submitted within 15 days – while the designee is given the charges, he or she has no opportunity to review the FAA’s underlying evidence. In comparison, the appeals panel has 45 days to consider the appeal and then another 15 days to notify the designee of their decision for a total of 60 days. We have seen evidence that FAA inspectors will use this period to gather more evidence to refute the defense and bolster the ‘prosecution’ so clearly the FAA is not bound to any sort of deadline for presenting its own case.

There is plenty that could be improved in the designee management process.

This is a great opportunity to help the FAA to better manage the designee community using effective processes that ensure fairness for everyone. MARPA members should strongly consider reviewing and commenting on this draft guidance.

Comments are dues to the FAA by January 7. Please send comments to MARPA, as well, so we can sure that our comments reflect your concerns.

Comments Due: 01/07/2015
How to Comment: Deliver comments by mail or hand to:
Susan Hill
1625 K Street NW
Suite 300
Washington DC, 20006Email comments to: Susan.ctr.hill@faa.gov
Email CommentsFax comments to:
(202) 223-4615, Attn: Susan Hill

UPDATE:

My comment on the cancellation of FAA Order 8100.8 failed to take into account FAA Notice 8000.372.  That Notice directs all AIR manufacturing personnel who oversee designees to stop using Order 8100.8 and being using 8000.95 on a schedule.  The schedule reflects the implementation of the Designee Management System (DMS) in those offices.

Under that schedule, all MIDOs with designee management responsibilities should have transitioned to Order 8000.95 during the summer (of 2014).  So Order 8000.95 will have supplanted 8100.8 for MIDOS (but not necessarily for ACOs and FSDOs).  This means that DMIRs and DAR-Fs have transitioned.  But DERs should still be under 8100.8 until they are formally transitioned (at which time they will fall under the instructions of 8000.95).

Special thanks to William Denihan for pointing this out!

Be sure to Request the Referenced Service Bulletin in Airworthiness Directives!

Have you ever been frustrated to learn that an AD went out that references a service bulletin, and (too late!) you later learned that the service bulletin made disparaging remarks or provided inappropriate directions about your company or your parts?

How do you prevent this situation?  You need to get a copy of the service bulletin that is cross referenced by the AD, and review it before the AD rule becomes final.  But sometimes no one will provide the service bulletin to you!

That just shouldn’t be the case.  If an AD might indirectly affect you because of the cross referenced service bulletin, then you should be entitled to review the service bulletin before it becomes part of a regulation.

The U.S. government agrees!!

The U.S. Office of the Federal Register has published a new rule designed to make government rules more transparent.  It accomplishes this by addressing incorporation-by-reference.

What is Incorporation-by-Reference?

Incorporation-by-Reference (or IBR) is the term for regulations that make reference to some other document that is not published in the rule. Historically, incorporation-by-reference came about because it cost money to print the Federal Register, and wasting a lot of pages on a standard that could easily be obtained outside of the Federal Register. But today, most people access the regulations and the Federal Register on line, so there is not as much of a burden associated with publishing such documents. Incorporation-by-reference can be an issue for the public because when an incorporated document is merely technically available – but it is not really available – then this can make it difficult or impossible for an affected person to comply with the regulation (and can make it impossible for the affected person to even know that (s)he is subject to the regulation).

In short, unavailable-but-incorporated documents can reflect secret regulations that are impossible to comply with.

With this in mind, the Administrative Conference of the US began to study what could be done to update the rules to reflect modern technology. This ultimately led to the Office of the Federal Register looking into potential changes to the rules on incorporation-by-reference.

Some Problems with Incorporation-by-Reference

The aviation industry faces many challenges related to incorporation-by-reference. An issue that can be very important to MARPA’s members is the availability of referenced documents in Airworthiness Directives(ADs), like service bulletins.  Service bulletin language can affect PMA parts, and can even disparage PMA parts in ways that are inappropriate.

Timely availability to the PMA community of these service bulletins can be a serious issue.  It is typical for the FAA’s incorporation-by-reference statement to insist that the incorporated service bulletins be obtained either from the FAA office or from the OEM who published the document. In order to test this system, I emailed an FAA office and an OEM who were described as the sources of a service bulletin (the Federal Register listed the emails and listed this as an acceptable way to make contact). The FAA response was that I should go to the OEM. The OEM response was to ask me why I wanted the service bulletin. When I responded that the service bulletin was incorporated by reference in a proposed AD, and I wanted a copy of the service bulletin to determine whether the trade association needed to file comments on behalf of the membership, I received no further communication from the OEM.  They just stopped responding to me.

MARPA Action

MARPA filed comments on the Advance Notice for this proposal and offered a number of suggestions in 2012. MARPA also participated in face-to-face meetings with the government to discuss ways to improve the current system.

The result was a new rule that clarifies obligations related to regulations that incorporate standards by reference.

What Changes Should You Expect?

It is important that incorporated material be available in proposed rules so that the public can comment on the proposed rule with full knowledge fo the proposed rule’s impact. Under the new standards (1 C.F.R. 51.5(a)), the preamble to a proposed rule must :

  1. Discuss the agency’s efforts to make the IBR materials reasonably available to interested parties, and
  2. Summarize the material it proposes to incorporate by reference in the preamble.

When the agency is ready to publish a final rule with an IBR, the agency must do the following (1 C.F.R. 51.5(b)):

  1. Ask for permission from the Office of the Federal Register to accomplish an IBR,
  2. Explain in the preamble to the final rule how interested parties can get a copy of the IBRed materials (it must be “reasonably available”), and
  3. Ensure a copy of the IBRed publication is on file at the Office of the Federal Register.

An important feature of the regulations is the requirement to discuss availability to “interested parties.” This is an expansion of the traditional language, which merely required availability to “the class of persons affected by the publication.” Interested persons should include persons who are indirectly affected (like those whose PMA parts MIGHT be affected in the case of an airworthiness directive) in addition to class of persons directly affected by the publication (which is generally operators).

The regulations continue to explain that IBR is limited to the edition that is incorporated. So if a subsequent revision of a service bulletin comes out, only the version that was approved by the Office of the Federal Register is the version that is IBRed (and not subsequent versions). 1 C.F.R. 51.1(f).

One sad omission was that the new rule does not define “reasonably available.”  The Office of Federal Register was worried that a definition might be inappropriate, so they were hesitant to offer a definition, and instead they have left it to a case-by-case analysis as defined by each agency.  But it seems certain that if you make a reasonable effort to obtain an IBRed service bulletin using the mechanism in the Federal Register, and you are denied, then you may have a claim that the service bulletin was not reasonably available.

While we did not get every change we requested, this nonetheless represents a good start on the process of providing better transparency in the situations of incorporation-by-reference.

Statistics AC (33-10) to be Rescinded Pending Revisions and Improvements

The Statistics AC is going to be revised.

We have been working with the FAA to study the Advisory Circular (AC) 33-10, Statistical Analysis Considerations for Comparative Test and Analysis Based Compliance Findings for Turbine Engine and Auxiliary Power Unit Replacement, Redesign and Repaired Parts.  We have pointed out a number of concerns with respect to this advisory circular in both our formal comments and in subsequent discussions with the FAA.  These can be summarized as saying that the AC does not appear to get the FAA to where the FAA wants to be, and consequently will not appreciably contribute to safety.

The FAA has let us know that they will be rescinding the version of AC 33-10 that was published in late August.  It must go through the internal FAA process so the rescission will not be immediate, but applicants should probably treat it as if it no longer existed because the text did not suit the FAA’s intended purposes.

This is not the end for statistics.  The FAA still wants to provide useful guidance to the industry.  But they have recognized that the current draft of the statistics AC is not what they want and have decided to take a step back and revisit the scope and intent of the AC.  They plan to incorporate changes and solicit formal comments on the revised document in order to make sure that they meet their goal of creating a useful document that helps to move the industry towards our mutual safety goals.  This will give everyone in the MARPA community an opportunity to contribute to the document.

This action reflects a joint efforts by the FAA and MARPA to understand the true impact of the guidance, and the rescission is a triumph of both good government and good industry efforts.

New Guidance: Casting and Proof of Structure

The FAA has released two new advisory circulars that may affect the PMA community.  Both advisory circulars are issued by the Transport Aircraft Directorate and apply to Part 25 aircraft (and parts thereof).

  • Casting Factors, AC 25.621-1: This AC provides guidance for meeting the requirements of 14 C.F.R. 25.621.
    • This regulation imposes limits and restrictions on casting, and also requires a design approval applicant/holder to have control over the operations of a vendor casting facility.
    • The intention of both the regulation and the AC is to drive greater levels of consistency into casting (or to mitigate inconsistencies).
    • Discusses a means of qualifying a casting process

 

  • Proof of Structure, AC 25.307-1: This AC provides guidance for meeting the requirements of 14 C.F.R. 25.307.
    • This regulation is for the demonstration of compliance for each critical loading condition.
    • The AC provides a list of factors that should be considered in deciding the need for and the extent of testing, including the load levels to be achieved.
    • The AC states that there are four certification approaches to choose from (and provides guidance on each one):
      • Analysis supported by new strength testing of the structure to limit and ultimate load.
      • Analysis validated by previous test evidence and supported with additional limited testing.
      • Analysis supported by previous test evidence.
      • Test only.

We would be interested in hearing from any MARPA member who is affected by one of these new advisory circulars.

FAA Issues Statistical Analysis Guidance – Are You Testing Enough Parts?

The FAA has issued a new advisory circular for statistical analysis.  This AC only applies to engine and APU parts.

The new advisory circular uses statistical analysis to arrive at correct sample sizes.  This sample size formula is introduced for persons who are trying to correlate two populations of parts.  MARPA had pointed out to the FAA that typically a PMA applicant does not correlate two different populations of parts – instead they derive the reasonable tolerances on one population of parts, and then design and produce within those tolerances.  The FAA would like PMA applicants to arrive at their appropriate sample size, test the parts being reverse-engineered, and then produce an equivalent number of pre-PMA parts to test for the same properties (and then correlate the two populations).  This is contrary to current FAA regulatory guidance, which requires the design to be approved and the  requires the production quality system to ensure that parts are all produced within the approved design parameters.  In essence, ACO engineers will now take control of the quality assurance system through the design process.

One of the problems with the AC is that it relied on statistical analysis for clinical trial sample size as the basis for assessing statistical analysis of reverse-engineering sample size.  Clinical trials for pharmaceuticals typically rely on populations of hundreds or even thousands of people.  Trying to test hundreds or thousands of parts in order to reverse-engineer them is simply not realistic.  Furthermore, the degree of part-to-part difference under modern quality assurance systems does not support such large sample sizes.
For those cases where the equations in the advisory circular give a lower number for the appropriate sample size, the FAA has also established minimum sample sizes.  The AC sets some minimum limits for the number of parts that must be tested in order to derive certain values (remember that you need that number of PC parts and also that number of reverse-engineered parts to meet the AC’s requirements):

Minimum Number of Parts to be Sampled

  • For basic material properties that are more dependent on alloy constituency than on part manufacture process – 10 approved parts from three separate lots with at least three parts per lot
  • For properties affected by how the material is processed during part manufacture such as high-cycle fatigue, low-cycle fatigue, creep, tensile strength, crack growth, etc. – 30 approved parts
  • For fatigue testing – at least 25 tested parts that are run until they crack
  • For parts exhibiting complex geometry or complex manufacturing variables, additional specimens may be required
  • For parts considered to have a high degree of criticality, greater sample sizes may be required

No statistical basis is offered for these minimum sample sizes.

The new advisory circular provides guidance for statistical analysis of sample-size despite the fact that no regulation actually requires such a broad-based sample.  The advisory circular appears to potentially change the regulations by increasing the burden on applicants.  To the extent that this is true, it is inappropriate.

Our concern is that despite warnings that this is non-mandatory guidance, this guidance may be used as if it were a regulation, with offices refusing to accept PMA applications that are otherwise valid, but that failed to use this AC as a basis for identifying sample size.

If you find that this AC effectively changes the application obligations imposed on you as a PMA applicant, STC applicant, or other FAA-approval applicant, then please contact MARPA so we can raise this concern with the appropriate personnel at the FAA.

AC 33-10 is known by its full title: Statistical Analysis Considerations for Comparative Test and Analysis Based Compliance Findings for Turbine Engine and Auxiliary Power Unit Replacement, Redesign and Repaired Parts.

FAA Sequencing Guidance Dictates FAA Project Priority

The FAA Aircraft Certification Service has issued their sequencing document.  This document provides guidance on how the FAA will prioritize certification / approval projects.

Projects will be provided FAA resources based on a Safety Index, Applicant Showing or Designee Finding (ASDF) value, and a project priority which will be calculated from the first two values.  Anyone who plans to seek FAA approval from the Aircraft Certification Service needs to understand this Standard Operating Procedure (SOP) in order to know how to best formulate their project to get the highest score (and the highest priority) when seeking FAA data approval resources.

Safety Index (SI)

The first value calculated will be the Safety Index (SI).  The sequencing program’s SI calculation puts a tremendous emphasis on safety-related projects needed to prevent an accident (described as “very high/immediate safety benefit”).  This is good to the extent that it prioritizes airworthiness directives (ADs).  When you look at the numbers, an AD that only affects five small general aviation aircraft will get a safety index of 450, while a national/strategic priority for a typical airline aircraft would be given a safety index of 350.  This shows that ADs will always take priority over other projects in other categories.

Unfortunately, this category that strongly emphasizes ADs is broader than just ADs.  The descriptive language of “very high/immediate safety benefit” could be interpreted to mean other projects as well.  This category could undermine the system if it is misused to describe projects as having “very high/immediate safety benefit” when they don’t really meet the normal parameters for an AD.

The sequencing program also prioritizes large aircraft over small, and large fleets over small.  This will put projects designed to support general aviation aircraft or rare aircraft (small fleets) at a distinct disadvantage.

Applicant Showing or Designee Finding (ASDF)

The ASDF  is a function of the complexity of the project and the amount of the project that will be approved by one or more designees.  You take the total number of findings of compliance that will be performed by the FAA (0, 1-5, 6-15 or more than 16 – any amount that is more than sixteen findings will be capped in the table).  Then you identify the percentage of findings of compliance that will be handled by one or more designees (so the finding of compliance does not need to be performed by an FAA employee).  These percentages will fit into one of these categories: 100%, 90-99%, 75-89%, 50-74%, or <50%.  You cross reference these two values in a table to obtain the ASDF, which will be low, medium or high.  A High ADF will be reserved to those projects with nearly all of the findings performed by a designee (or findings based on applicant-only showing which is a theoretical notion that is being developed by an aviation rulemaking committee).  For these projects, the FAA will have very little interaction with the application’s approvals.

In projects where the FAA has a high number of retained findings and/or the percentage of FAA-retained findings exceeds a metric established by the FAA (50-75% depending on the circumstances), the FAA will assign a low ASDF rating.

Project Priority

Project priority is then determined by cross referencing SI and ASDF.  An AD-level safety index will always lead to a priority one ranking, even when ASDF is low.  Everything else will fit into priority status two through four.  The FAA will break ties among priorities by using SI, so this means that SI is your most important metric.

Those performing projects with negligible safety impact (which includes interiors projects like passenger entertainment systems and cabin modifications) get a zero value for safety impact.  This will mean that the safety index for these projects is always zero, which will place them in the lowest possible project priorities.

Why is project priority so important?  Because a project with a priority level one gets processed according to the office’s normal project flow times, but a priority level four project can be processed according to the office’s normal project flow times PLUS 90 DAYS!  So (for example) the FAA may delay the response to your application (and thus the start of your project) by an additional 90 days if your project falls into priority level four; and then after that, additional 90 day response delays are permitted for each ‘resource-limited’ response.

These 90-day-delays are on top of office flow times (OFT), which are the amount of time allocated to a response by the local office – this time is set by the local office at the local office’s discretion based on staffing and workload.  OFTs will apply to responses to discrete elements like test plans or test reports.

Certification Plan

The new guidance also gives an automatic safety index of zero to applications that come in without a certification plan.  This will be a tremendous strike against new market entrants, and could stifle innovation, because new market entrants typically do not know how to draft a certification plan.

We have always believed that a certification plan is a good idea.  But such a plan is not required by the regulations and thus there is no regulatory guidance in how to create such a plan.  The Paperwork Reduction Act (PRA) forbids government agencies from imposing information-collection burdens  on the public without first obtaining OMB approval for the collection.  The certification plan will become a de facto requirement for anyone that does not want to placed at the back of the line with a zero SI.

Certification plans are good things.  They help to focus the applicant’s efforts by identifying which regulations are relevant for the showing of compliance, and how will the applicant show compliance with each.  But for the FAA to engage in a de facto refusal of tax-payer-funded services to new market entrants who are unable to produce such a certification plan seems to be fundamentally unfair, as it creates yet another barrier to entry for the new market entrants.

Perhaps most damaging is the FAA’s failure to provide firm guidance concerning a certification plan.  Without firm guidelines, any FAA office is free to reject any certification plan as inadequate.  The rejected applicant will then have to face a “zero” SI (thus denying him/her timely services) or go back and try again until the applicant is able to meet the requirements of the local office (thus delaying the projects entry into the FAA oversight system).  Imposing internal FAA workflow requirements that impose a de facto requirement on the public to produce a document that is not required by regulations (by making it  de facto requirement for obtaining timely FAA services) is a back-door way of circumventing the regulatory process that is described by the Administrative Procedures Act.

Solutions

What should the solution be?  If the FAA fails to publish a certification plan guideline to aid applicants in meeting this de facto requirement, then perhaps industry should work with the FAA to develop standard guidelines for a certification plan. This does not relieve us of the problem of using internal work flow documents to impose pseudo-regulatory requirements, but at least it provides some guidance to permit industry to meet the FAA’s de facto requirements.

Many existing approval applicants already have an internal process for creating a certification/approval plan (often one that was worked out with the local FAA office to meet their particular requests as well as regulatory requirements).  For these companies, it is important to review and understand this sequencing SOP in order to calculate how best to achieve a high SI in order to get treated earlier, rather than later.

Another important solution for PMA applicants is the streamlined PMA process found in FAA Order 8110.119.  That document allows PMA manufacturers with non-safety-sensitive (NSS) parts to obtain an expedited review (which should be outside of the normal sequencing mechanism).  It is not without its own burdens, though.  The applicant must perform an additional analysis (not-required-by-the-regulations) to show that the parts are not safety sensitive, in order to qualify for NSS treatment, and then must have full evidence of compliance (as with any other application).

When Exporting PMAs to Europe, Be Sure to Use the Right Words on Your 8130-3 Tag

Do your export 8130-3 tags have the right language on them?  If they don’t then you run the risk that they may be rejected in Europe.

The Bilateral Aviation Safety Agreement (BASA) between the United States and the European Union specifies that the documentation that accompanies a PMA part bound for the European Union must include specific language in order to be acceptable to the European Union’s airworthiness authority, EASA.

Critical Parts Language on the 8130-3 Tag

The BASA Technical Implementation Procedures (TIP) direct that PMA parts being exported from the United States to the European Union bear appropriate language in block 12 (the remarks block) of the export 8130-3 tag. In order to meet this requirement properly, the export 8130-3 tag must identify the part as falling into one of these three categories (by using the authorized language):

1. For a PMA part which is not a critical component, the remarks block of the 8130-3 should state:

“This PMA part is not a critical component.”

But if the PMA part is a critical component, then there are two options for the language in the remarks block.

2. In the first option for critical components, if the PMA holder also holds an EASA STC design approval which incorporates the PMA part into an EASA certified or validated product, then the language should say:

“Produced by the holder of the EASA STC number [INSERT THE FULL REFERENCE OF THE EASA STC INCORPORATING THE PMA].”

3. In the second option, if the PMA holder holds a licensing agreement from the TC or STC holder (giving the PMA holder the rights to use the TC/STC design for the PMA parts), then the following statement should be written in the remarks block:

“Produced under licensing agreement from the holder of [INSERT TC or STC NUMBER].”

These options 2 and 3 are the only two options for exporting FAA-PMA critical components from the US to the EU.

Critical Components and the EU Bilateral

The PMA “criticality statement” is something that is requested under the technical implementation procedures (TIPs) that accompany the US-EU bilateral aviation safety agreement (BASA).

Under the US-EU TIP, a “Critical Component” is defined as:

“a part identified as critical by the design approval holder during the product type validation process, or otherwise by the exporting authority. Typically, such components include parts for which a replacement time, inspection interval, or related procedure is specified in the Airworthiness Limitations section or certification maintenance requirements of the manufacturer’s maintenance manual or Instructions for Continued Airworthiness.”

The determination of whether a PMA part is critical is made by the design approval holder (the FAA-PMA holder) and confirmed as part of the FAA approval. Section 4.4(c) of Order 8130.21H states that “The determination of a PMA article’s criticality, as required to be entered in Block 12 when exported, can only be determined by the actual design approval holder (that is, the FAA-PMA holder).” This is important language because certain parties (foreign governments and competitors) have attempted to gainsay the FAA-approved “critical part” decisions of the FAA-PMA holders.

we have heard of DARs who thought that this language meant that only the PMA holder could obtain the export 8130-3 tag.  This is not so.  This language is not meant to prevent a designee issuing an export 8130-3 tag from making a PMA “criticality statement” on the 8130-3 tag that is consistent with the determination of the design approval holder.  Thus, any designee issuing an export 8130-3 tag for any FAA-PMA part may rely on the (PMA) design approval holder’s determination as to whether the PMA part is a critical component.

This critical parts language generally does not appear to apply to most bilateral airworthiness agreements – it is a special nuance of the US-EU Agreement.  Adding the “criticality” language does not hurt the 8130-3 tag (and may be useful if the end-user is not yet known), but the criticality language generally remains unnecessary unless  the part is destined for Europe.

New FAA Policy Concerning § 33.83 Engine Surveys

The FAA has released a new draft Policy Statement concerning the vibration surveys and engine surveys required by § 33.83.  The new guidance clarifies that this regulation is intended to require a full engine test (for type certificate applicants).  The draft guidance, known as “PS‑ANE‑33.83‑01,” is currently available for public comment.

Members will recall that MARPA successfully opposed a final rule that would have applied the “full engine test” standard to PMA and STC applications.  At the time, our discussions with FAA representatives revealed that their real concern was applying the full engine test standard to engine type certificate applications, and not to PMAs.  The reference to PMAs and STCs, they explained, was an unfortunate mistake.

This draft guidance attempts to more narrowly address the FAA’s concerns about full engine test for type certificate applicants.

In order to ensure that the FAA’s intent is clear, MARPA plans to offer some additional language designed to clarify that this Policy Statement does not supersede the discussion laid out in FAA Advisory Circular 33-8 (Guidance for Parts Manufacturer Approval of Turbine Engine and Auxiliary Power Unit Parts under Test and Computation).  We will also look for opportunities to help the FAA meet their policy goals.

Comments are due to the FAA by November 21, 2014.  They can be emailed to dorina.mihail@faa.gov or mailed to her at:

Federal Aviation Administration
Engine and Propeller Directorate
Standards Staff, ANW-111
12 New England Executive Park
Burlington, MA 01803

Please share your comments with MARPA, too, so we can make sure our comments are consistent with the concerns of our members.

Inappropriate Restrictions on the Use and Availability of ICAs

Some of you may be wondering where to find the FAA’s policy memo on design approval holder restrictions on ICA availability.  Older MARPA links to the original position of that guidance are no longer valid because it has been moved.  But it is still available if you know where to look!

Many MARPA members look for this policy memo because it clarifies that anti-competitive language in ICAs (restricting use of PMAs or third party repairs) is unacceptable to the FAA:

While not exhaustive, the FAA finds the following practices of using restrictive language in the ICA or through restrictive access or use agreements unacceptable under the provisions of 14 CFR §21.50(b) and related ICA airworthiness requirements:

1) Requiring the owner/operator to only install DAH-produced or authorized replacement parts, articles, appliances, or materials.
2) Requiring that alterations or repairs must be provided or otherwise authorized by the DAH.
3) Requiring the use of only maintenance providers or other persons authorized by the DAH to implement the ICA.
4) Establishing, or attempting to establish, any restriction on the owner/operator to disclose or provide the ICA to persons authorized by the FAA to implement the ICA.

The guidance has found a permanent home in the FAA Regulatory and Guidance Library.  A copy of that guidance is also available on the MARPA website.

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