Last week MARPA filed comments with the FAA in response to two policy documents that directly affect PMA manufacturers. As we previously explained on this blog, both of these documents speak directly to the PMA approval process.
Draft revision D to FAA Order 8110.42 Parts Manufacturer Approval Procedures. Two notable changes made in the revision was the removal of guidance to PMA applicants (released as a stand-alone document as draft AC 21.303-PMA) and the inclusion of a section directing ACOs to apply the FAA Risk Based Resource Targeting (RBRT) tool. It also made certain technical changes to the Order to update citations and keep up with rule changes.
MARPA observed that the inclusion of RBRT in the Order creates the risk of unequal treatment across—or even within—different offices. This is because the RBRT tool attempts to create the appearance of objectivity by assigning numerical values to what are essentially subjective evaluations by FAA personnel. Because the tool offers no metric, rubric, or guidance to aid FAA personnel in assigning values, it is possible for even identical projects to be assigned different risk values based on the subjective assessments of personnel. The ultimate result is that highly similar projects could be allocated markedly different resources.
Draft Advisory Circular 21.303-PMA updates the FAA guidance to applicants for PMA of articles submitted on the basis of test and computation or identicality without a license agreement. This guidance is for the most part a recast of the guidance that formerly appeared in Order 8110.42C. MARPA offered suggestions for improving the guidance related to sample sizes required for test and computation analysis, as well as general comments seeking to clarify the guidance.
In both documents, MARPA commented that the FAA should include a section describing use of the Streamlined PMA application process.
We plan to meet with representatives from the FAA in person to further discuss these comments. FAA personnel will also be at the MARPA Conference in Las Vegas, October 23-25, and available to discuss PMA guidance and other initiatives. MARPA will continue to work with the FAA to ensure that the guidance enhances safety while limiting burden to our members and the industry.
The FAA has published for public comment a draft advisory circular: AC 20-24D, Approval of Propulsion Fuels and Lubricating Oils.
Since the 2009 revision to the FAA’s manufacturing regulations, all materials and other articles for aircraft have been required to be approved by the FAA under PMA, TSOA, or PC or to fall into one of the stated exceptions found in 14 C.F.R. 21.9. This means that lubricating oils are required to be approved or to be manufactured and made available under a standard. The guidance in 20-24D makes it clear that the SAE standards specify testing standards for lubricating oils but that they are insufficient to reflect a standard for production purposes; and therefore the FAA must approve lubricating oils (e.g. through the TC for original oils, and though other means like STCs for subsequently defined oils).
The guidance appears to be out-of-date relative to the 2009 changes to the FAA’s regulations in light of the fact that it does not address production approval. Thus, the concerns with the regulations are not necessarily with the proposed revisions, but rather with the failure of the proposed revisions to bring the guidance up to the existing regulatory standard.
The guidance omits any mention of PMAs for oils, and proceeds as if PMAs were unnecessary. In light of the fact that the FAA has issued PMAs for lubricating oils, this omission seems important. Additionally, as mentioned above, 14 C.F.R. 21.9 now appears to require production approval.
Also, the fact that the FAA has issued PMAs for lubricating oils seems to create an uneven playing field is some participants in the marketplace are not required to obtain PMAs or other production approvals.
The guidance also talks about needing engine manufacturer approval for new lubricating oils. In light of the fact that some PMA holders for lubricating oil are independent of the engine manufacturer, it would appear that the guidance creates a situation where engine manufacturer approval would become a condition for market entry. This appears to potentially violate the Sherman Act .
Comments are due to the FAA at the end of September, so please get us YOUR comments by September 16 so we can make sure we address your concerns in the MARPA comments.
MARPA continues to work diligently in support of the FAA’s Part 21 ARC. One of the ARC working groups is focused specifically on performing a cost benefit analysis of the ARCs proposals. We previously posted on the blog a request for our members’ input on what data we should be tracking in order to best estimate costs. Although we have received a handful of responses to date, we still need your feedback to ensure we have an accurate cost assessment as possible!
Our members have reported the following measurable data points
The data your company is able to measure may be similar, or may be different. In either case, we want to hear from you to provide a useful and usable data survey. Remember, at this time we are NOT collecting actual numbers, but merely attempting to determine what data we can reasonably expect to collect in the future to help with our cost benefit analysis. Future data will be collect anonymously to protect our members’ competitive interests while also guarding against costly regulation.
This information will help us to develop metrics for measuring industry costs of regulatory compliance. We will then have a baseline to which we will compare the costs and benefits of the ARC’s proposals. This is industry’s opportunity to provide detailed feedback regarding the costs of FAA regulations. The FAA will be joining us at the MARPA Conference in October, so it is important that we have investigated and reviewed this data prior to that time.
If you have not yet taken the opportunity to respond with what sort of cost data your company tracks, please take a few minutes and let us know. This will go a long way to helping us ensure the Part 21 ARC develops sound and cost effective proposals to deliver to the FAA. Email responses to MARPA Associate Counsel Ryan Aggergaard at email@example.com.
This conversation was a follow-up to the FAA publication of a technical amendment that would have required full engine testing for vibration compliance. The FAA representatives explained that they wanted to explore the reasons for MARPA’s concerns over the rule (the rule had been withdrawn based on MARPA’s objection).
They asked about our concerns with the rule. They asked about whether a change to the preamble would have been enough to salvage the rule. We answered that IF their intent was to apply the full engine test requirement to only TC applicants (as FAA employees had indicated in an August 27, 2012 phone conversation) and not to PMA/STC applicants then merely changing the preamble would be insufficient, because the problem lay in the (withdrawn) rule language itself. We pointed out that the (withdrawn) rule language would have appeared to have required full engine vibration testing. Component-level testing (which is currently permitted for PMA applicants) would have been available as a supplement to full engine testing (and not as an alternative, as currently permitted by AC 33-83-1).
We asked what the FAA’s goals were with respect to the rule, and explained that MARPA would be happy to work with the FAA to help them meet their safety goals in a way that does not undermine industry’s ability to obtain PMAs. They responded “We are not sure where we’re going.”
They asked whether the existence of AC 33.83-1 had any impact on MARPA’s concerns and I reminded them that a common rule of regulatory construction is that a rule change that causes a rule to conflict with guidance invalidates the conflicting guidance. So if the rule had not been withdrawn then we would have been unable to use AC 33.83-1 to the extent it permitted anything less than what the new rule required
They asked about the economic effect of their rule. I explained that in a static model (of the sort used by federal economists) that it would have had a tremendous effect because it would have made engine PMAs much more expensive to obtain. I noted that in a dynamic model, the likely real world effect could have been to stop engine PMA applications because it could become economically impractical for PMA applicants to perform full engine vibration testing in lieu of the methods made available by AC 33.83-1 (as opposed to using the reasonable methods currently permitted in the AC). Neither of these models appear to produce economic results that are favorable for America.
Later in the conversation I reiterated that MARPA would be happy to assist the FAA in crafting language if they could just tell us what their goals are in the rule change exercise. They explained that “We are not yet prepared to say what our goal is.“ They also explained that they felt the ex parte rules and standards precluded them from disclosing any information about their thoughts or purposes (the ex parte rules do permit the FAA to engage in pre-rulemaking ex parte contacts to obtain technical and economic information).
What does this mean for the PMA Community? It means that the FAA appears to be working on another change to the vibration rule of 14 C.F.R. 33.83. It means that they recognize that such changes are potentially controversial and thus they are collecting data to try to improve the next iteration of the rule. But it also means that the Engine Directorate is as-yet unable to elucidate a cogent rationale for why they would like to change the vibration rule. This is something we will be looking for in the coming months.
On July 2, MARPA filed comments with the FAA in response to the draft Standard Operating Procedure Aircraft Certification Service Project Prioritization and Resource Management. The SOP, commonly referred to as “sequencing,” is intended to assist the FAA in prioritizing certification projects submitted for FAA approval in order to get the most out of its limited resources. The goal of sequencing is to give priority to those projects that should have the most significant and immediate effect on safety.
Unfortunately, the policy as written misses out on clearly offering additional safety benefits, and disproportionately favors large businesses over small businesses, while offering no sound policy or safety rationale for this favoritism.
MARPA’s comments identified a number of problems with the policy. The factors and criteria established by the FAA and used to determine a ranking for the purposes of prioritization appear in many ways to be arbitrarily established, with no identified methodology or basis for the calculation of the assigned values. Additionally, the determination of the safety impact of a given project (a significant factor in calculating priority) appears to be left to the subjective evaluation of individual FAA offices or even individual employees. Such subjectivity creates the possibility that identical projects may be assigned a higher or lower priority based on the opinion of an individual employee.
Even when evenhandedly applied, the policy may negatively affect the ability of small businesses to compete with large companies and OEMs, based not upon the safety benefits of their projects, but almost entirely upon the resources available to the companies.
MARPA understands and appreciates the FAA’s efforts to optimize the use of their resources to provide the greatest possible safety benefit to the industry and the flying public. MARPA consistently works with the FAA to optimize its resources and enhance safety, through initiatives such as the Streamlined PMA Process, and participation on rulemaking committees. MARPA looks forward to continuing to work with the FAA to better improve aviation safety and resource commitment.
As many of you know, MARPA is working on the FAA’s Aviation Rulemaking Committee (ARC) that is rewriting the manufacturing rules to address Safety Management and Design Organization elements. One of the things that the FAA wants to track is the cost-benefit data, to ensure that the project will reflect a positive benefit for the industry (as well as for the FAA).
To this end, we are seeking data about what we should track to estimate costs. We would appreciate answers to the following questions (note that we are seeking information about categories of costs, and not yet seeking numbers for costs):
At this time, WE ARE NOT COLLECTING ANY NUMBERS!! We are trying to identify what are the right questions to ask. This information will be used to develop a certification cost survey for the membership, and THEN we will be in a position to ask for numbers. When we ask for numbers, we will do it in such a way that individual company data will be protected.
[so you should be planning on eventually getting us hard numbers in these general areas]
Please get us your answers ASAP. We will plan on asking for this sort of data again in the August MARPA Supplement but it would be useful to get the initial data by the end of July.
The FAA has asked to use our Conference as an opportunity to collect industry data, so we will be developing data models during the summer in order to support those efforts. We are hoping to develop metrics for measuring our industry’s costs between now and then, so that by the time of the MARPA Conference in October, we will have a robust model upon which to rely.
On July 1 the FAA released for comment drafts of revisions to two policy documents of great importance to PMA manufacturers. Both documents speak directly to the PMA approval process.
The first is revision D to FAA Order 8110.42 Parts Manufacturer Approval Procedures. Among other changes, the revision updates the regulatory citations from the latest Title 14 of the Code of Federal Regulations (14 CFR), part 21 rule changes, introduces risk based resource targeting (RBRT) with management options, incorporates directive feedback and clarifies certification office responsibilities under the FAA’s quality management system.
This order describes the internal responsibilities and procedures for approving replacement and modification articles for installation on type-certificated products. The order addresses only the requirements for issuing a PMA; FAA Order 8120.22, Production Approval Procedures, contains the procedures addressing the production activities of manufacturers who produce articles under PMA.
The proposed revision also removes applicant guidance from Order 8110.42D. The applicant guidance removed from the draft of revision D has been relocated to the other draft document released on July 1: FAA AC 21.303-PMA.
AC 21.303-PMA updates the FAA guidance to applicants for PMA of articles submitted on the basis of test and computation or identicality without a license agreement. The AC also provides an application and compliance checklist, adds a certifying statement of compliance, provides guidance for assessing an article’s impact on safety and describes how the FAA approves replacement parts for TSO articles. The AC describes one way, but not the only way, to comply with subpart K of Part 21 of the Federal Aviation Regulations.
Comments on both of these drafts are due September 1, 2013. Comments on Draft Order 8110.42D should be sent to firstname.lastname@example.org. Comments on Draft AC 21.303-PMA should be sent to email@example.com. Whether you file formal comments or not, please share your thoughts and concerns with MARPA Associate Counsel Ryan Aggergaard at firstname.lastname@example.org. MARPA will make every effort to address our members’ concerns in our comments to the FAA.
We have written recently on this blog about the important SMS/Part 21 Aviation Rulemaking Committee (ARC) and corresponding Working Groups in which representatives of MARPA are now participating. The result of this ARC promises to affect each and every manufacturer of PMA in some way or another. MARPA will therefore be there every step of the way, working to ensure that the interests of PMA community are protected. But in order to ensure that we guard our members’ interests, we will need your assistance and feedback! We are therefore asking MARPA members to tracks and share with us the cost of regulatory compliance.
The Regulatory Flexibility Act requires agencies to attempt to fit the burdens of a proposed regulation to the scale of businesses. This recognizes the fact that the same regulatory burden that may simply be the cost of doing business to a large multinational corporation may be crippling to a small company. Recognizing the extreme importance of scalability in the promulgation of the new Part 21, one of the four Working Groups is dedicated solely to undertaking a Cost-Benefit Analysis of the proposed regulatory changes.
This is where MARPA member feedback will be of extreme importance. The Cost-Benefit Analysis Working Group needs data to better understand what the current cost of compliance to small business actually is. This will function as a baseline from which to determine the benefits and costs of the proposals generated by the other three Working Groups. As the Working Groups craft the new regulations they will turn to industry to obtain data demonstrating the effects of the proposed changes.
It is vital that MARPA members participate in providing data to the Working Groups as the new proposals are developed and those assumptions tested against hard data. Hidden costs of compliance with regulations, under-estimations of costs, and over-estimations of benefits have the potential to result in an overly burdensome regulation. The participation of MARPA members in providing data to the ARC Working Groups will go a long way toward shaping an effective regulation while minimizing the burden on small businesses.
Input from members helps MARPA to more effectively advocate for policy changes that benefit the PMA community. Responses to requests for information such as this—or for data regarding the Streamlined PMA Process—helps MARPA to focus its resources to optimize benefit to the membership.
MARPA looks forward to the participation of its members in shaping the future of Part 21. Although the Working Groups have not yet begun to approach industry with requests for data, MARPA would like to get started early. If your company tracks the cost of regulatory compliance, whether in dollars, personnel, man-hours, paperwork, or any other metric, we want to hear from you. Your confidentiality is important to us, so MARPA will only report data in the aggregate; no individual data will be released and no company names will be revealed. You can send this data to MARPA Associate Counsel Ryan Aggergaard at email@example.com. Please also send Ryan an email if you have any questions or would like to start tracking compliance costs.
The FAA has released draft guidance on major repair and alteration data approval, and is seeking public comment.
The guidance is meant for FAA employees/designees and is intended to provide them with assistance in the data approval process. Nonetheless, this is very important guidance for the private sector because it will likely have the effect of limiting major repair and alteration data approval only to the scope of this particular guidance.
It is important for repair stations and air carriers to review this data to ensure that it accurately describes the categories of data that must be approved, and that it provides a reasonable mechanism for approval of that data. It is equally important for PMA manufacturers to review the data, because it may affect their Instructions for Continued Airworthiness, as well as approval of repair and alteration data that is developed to respond to continued operational safety (COS) issues.
The draft guidance can be found online here: http://www.faa.gov/aircraft/draft_docs/media/8300.X.pdf.
Comments are due to the FAA by June 12, 2013 and should be emailed to firstname.lastname@example.org.
Please send copies of your comments to MARPA so that we can be sure that our comments reflect your concerns.
The SMS/Part 21 Aviation Rulemaking Committee (ARC) opened a three day meeting this morning in Rosslyn, Virginia. The meeting expands the scope of the ARC to include four working groups that will develop the new rules for certification and approval of aviation products and articles. MARPA staff attended the live meeting and MARPA members participated by dial-in teleconference. This project will definitely affect every MARPA member and could be the most important rulemaking activity affecting the PMA community in over 60 years!
Dorenda Baker is the Director of the FAA Aircraft Certification Service. Ultimately, the ARC reports to her. Baker explained that the FAA is committed to taking the ARC’s recommendations and moving forward with those recommendations to craft a rule that meets our ICAO SARP obligations (SMS or Safety Management Systems). She stressed that we need to take into consideration how this rule will apply to both large and small companies. It needs to achieve safety goals for everyone.
Some of the points that Baker raised included these:
MARPA has been centrally involved in drafting the working group charters in order to ensure that the ARC recommendations will support the next generation of safety management. Baker’s commitment to protecting the interest of both small companies and large companies is encouraging; but the details will be important to the PMA community and there is plenty of opportunity to see a rule that does not work well. With this in mind, this could be one of the most important projects that MARPA has ever worked-on for the future of the PMA community. MARPA will remain at the heart of this process in order to ensure that the interests of the PMA community are protected.