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MARPA Comments on New FAA PMA Policy

In January, we wrote in this space about two new FAA Policy Statement proposals aimed at increasing coordination between FAA offices in the cases of certain engine PMA and propeller PMA applications.  MARPA is always on the lookout for those potential regulations and policies–whether large or small–that could effect our members.  In an effort to best support the industry, MARPA solicits feedback from members and files comments addressing the concerns of the PMA community with the FAA.  MARPA also works to support the FAA in order to provide industry’s perspective and needs in order to help develop the best rules, policy, and guidance possible.

Last week we filed comments on draft policy statements PS-ANE-33.3-05 and PS-ANE-35.15-02. These two statements were substantially similar in content, and therefore raised similar concerns.  The policy statements are intended to create a uniform policy describing the engine and propeller PMA projects for which an ACO is required to use the national certification project notification (CPN) database to alert the Certification Management ACO (CMACO) and Engine and Propeller Directorate (EPD) about the project.  The purpose is to enable the CMACO and EPD to provide relevant input when the PMA application is for a project the failure of which may result in a loss of thrust or power.

MARPA noted several possible issues with the proposed Policy Statements.  First, our comments noted that the policy as proposed could run the risk of burdening PMA applicants by delaying response time, as each FAA office took the opportunity to review the project.  MARPA also noted the risk that differences of opinion between offices could be hashed out using an individual PMA application as the mechanism.  This could also result in undue burden to the applicant.  Finally, MARPA noted that inquiries by FAA offices about certain PMA projects could inadvertently alert TC holders of possible competition in a particular part market, and give that TC holder the opportunity to lock up the market before the PMA package is ever approved; a clear unfair competitive advantage.

Finally, MARPA noted that a certain provision uniquely included in PS-ANE-33.3-05 (the engine-PMA Policy Statement) was needlessly critical of PMAs and potentially harmful to the PMA industry. The sentence in question reads “[f]ailure of some of these engine PMA parts has resulted in unsafe conditions and the issuance of airworthiness directives.”  MARPA explained that this sentence was inappropriate for two reasons.  First, it incorrectly implies that PMA parts are abnormally unsafe and that TC products do not have a history of resulting in ADs.  Second, the sentence in no way advances the purpose of the Policy Statement, which is to establish uniform standards for use of the CPN database.  For these reasons, MARPA recommended the deletion of the sentence.

MARPA will continue to work for its members to advise and cooperate with the FAA in crafting fair and effective policy.  Members comments on these issues are always welcome.

You can read MARPA’s comments in their entirety on the MARPA website under the Government Affairs tab at http://www.pmaparts.org/government/.

MARPA Joins U.S. Industry in Demanding Regulatory Transparency

Last month, MARPA joined with a broad coalition of U.S. industry associations and representatives who together signed on to a letter to the U.S. House of Representatives in support of current legislative efforts to enact reform of the regulatory process.  The multi-industry letter emphasized the importance of creating a level playing field for citizens regulated by federal agencies, holding agencies accountable to the public, and improving the transparency of agency actions.

Transparency and participation between federal agencies and the citizens they regulate is an important part of the regulatory process.  Rulemaking processes that are opaque or secret can result in regulations that are not only unduly burdensome, but which also may ignore important advances in industry practices and techniques, due to an absence of industry participation and information.  Such regulations also undermine industry confidence in the regulatory agencies and can lead to unjust or unreasonable penalties as a result poorly drafted rules or rules that are unworkable in practice.

The legislation before the House of Representatives, H.R. 2804 Achieving Less Excess in Regulation and Requiring Transparency (ALERRT) Act, draws upon concepts described in a number of other bills.  Several key elements are included in the ALERRT Act:

  • Federal agencies will submit monthly or yearly reports describing planned or final rulemakings to the Office of Management and Budget (OMB).  OMB would then release information about those rulemakings, including cost and benefit, to the public.
  • The Administratve Procedure Act will be updated to provide greater transparency to the public during the rulemaking process.  This is particularly important in light of the recent increase in regulations creating million- or billion-dollar burdens on industry.
  • Bring more transparency to the “sue and settle” process under which outside advocacy groups often take control of an agencies agenda and regulatory priorities.
  • Expand the scope of required regulatory impact analyses under the Regulatory Flexibility Act.

By enacting the above mentioned reforms, Congress can help to create a level playing field for its citizens, better hold agencies accountable to the public, and improve the transparency of agency actions.  Improved access and confidence in the regulatory process should result in fewer unduly burdensome or unworkable regulations and encourage increased stakeholder participation in the rulemaking process.

Get Ready, Get Set, Go! Foreign 145 Certificates are Back on the Table, as TSA Issues its New Rule.

Many of MARPA’s PMA members also hold repair station certificates, so the entire MARPA community will be interested to know that the decade-long saga that is the Repair Station Security rule is finally coming to a resolution.  The rule is scheduled to be published in the Federal Register on Monday.

The repair station security rules are authorized under the repair station security statute (49 U.S.C. 44924). That statute barred the FAA from issuing any new foreign repair station certificates until TSA security audits were completed for existing stations. Now that the rules are out, once TSA has audited all existing repair stations, the FAA may be able to once again start issuing foreign repair station certificates. Of course, this must be balanced against the comments of FAA Deputy Associate Administrator John Hickey who suggested last Spring that the FAA may not have the resources to process the applications when TSA issues its rules.

Throughout the foreign certificate hiatus, we’ve advised MARPA members who are interested in pursuing new foreign repair station certificates to file applications with the FAA in order to secure their place in the queue when the restrictions are lifted.  In private meetings with FAA officials, we’ve been told that the FAA does not intend to strictly follow the first-in-first-out approach to these applications, but companies who desire new foreign repair station certificates ought to start working immediately in order to be able to pursue and support those applications with the FAA.

The final rule contains the following requirements:

  • To Whom Does the Rule Apply?: The regulations apply to repair stations certificated by the FAA under Part 145, except repair stations located on a U.S. or foreign government military base. All repair stations are subject to inspection as provided in the rule and to Security Directives should there be a security need. However, the rule text requires only certain repair stations, discussed below, to carry out security measures on a regular basis.
  • TSA Inspection Authority. Repair stations must allow TSA and other authorized DHS officials to enter, conduct inspections, and view and copy records as needed to carry out TSA’s security-related statutory and regulatory responsibilities. For repair stations not required to carry out security measures on a regular basis (i.e., those repair stations not located on or adjacent to an airport), TSA does not intend to inspect such facilities, except (1) for compliance with security directives issued by TSA and with airport security programs required by TSA (for those repair stations that are included in an airport security program), and (2) to respond to security information provided to TSA by U.S. or foreign government entities.
  • Implementation of Security Measures: The security measures in this rule cover repair stations that are on or adjacent to certain airports. TSA will consider a repair station to be “on airport” if it is on an air operations area (AOA) or security identification display area (SIDA) of an airport covered by an airport security program under 49 C.F.R. part 1542 in the United States, or on the security restricted area any commensurate airport outside the United States regulated by a government entity. TSA will consider a repair station to be adjacent to an airport if there is an access point between the repair station and the airport of sufficient size to allow the movement of large aircraft between the repair station and the area described as “on airport.”
  • What are “Security Measures?”: Repair stations required to implement “security measures’ will be required to (1) designate a point of contact(s) to carry out specified responsibilities; (2) prevent the unauthorized operation of large aircraft capable of flight that are left unattended; (3) verify background information of those individuals who are designated as the TSA point(s) of contact; and (4) verify background information of those individuals who have access to any keys or other means used to prevent the unauthorized operation of large aircraft capable of flight that are left unattended.
  • Security Directives: Repair stations are required to comply with Security Directives (SDs) issued by TSA. We had objected to Security Directives to the extent that they could represent rulemaking activities promulgated in the absence of notice and comment rulemaking procedures. TSA has added language to the final rule to clarify that repair stations may comment on SDs issued by TSA, but TSA has imposed on itself no obligation to respond to such comments. Thus, we remain concerned that Security Directives could be used to promulgate new rules in circumvention of the notice-and-comment requirements of the Administrative Procedures Act.
  • Notification of Deficiencies; Suspension of Certificate and Review Process: The regulations describe the process whereby TSA will notify the repair station and the FAA of a security deficiency identified by TSA and provide an opportunity for the repair station to obtain review of a determination by TSA to suspend its operating certification. Such a suspension would be an immediately-effective suspension that would not be stayed through petition for review (note that 49 U.S.C. 44924(c) already requires the FAA to suspend or revoke a certificate upon the advice of TSA). This could give TSA tremendous power to impose interpretations of their standards that may be beyond the published scope of the rule, and the repair station may be largely powerless to seek review of those standards, because the only practical way to seek review is to be accept suspension during the entire period of the review process (TSA is allowed to grant itself an extension so the time limits on TSA action may be meaningless). TSA would perform an internal review of the petition for review and would create the record but then the matter would be subject to review by a Court of Appeals.
  • Immediate Risk to Security; Revocation of Certificate and Review Process: The regulations specify that when TSA determines a repair station poses an immediate risk to security, TSA will notify the repair station and the FAA that the certificate must be revoked. The regulations also provide the process for the repair station to obtain review of such a determination. Many of the same concerns regarding suspension apply to the revocation process as well.

The new rule can be found online at http://origin.library.constantcontact.com/download/get/file/1102873717486-941/TSA+Security+Rule+Published.pdf.

Updated Agenda for Int’l Safety Conference

Today, EASA issued an updated agenda for the 2013 EASA / FAA International Aviation Safety Conference.  The Conference is the annual meeting among EASA, FAA, TCCA and other regulators to discuss new paradigms in regulatory oversight.  This meeting directly impacts the aviation industry, which is the subject of this regulatory oversight!

The updated agenda provides better guidance on what to expect from the 2013 meeting.

Sessions that will be interesting to member of the PMA manufacturing community will include:

  • New Technology: A Challenge for Regulators
  • Safety Management and Global Harmonisation
  • Safety Continuum: Regional flexibility vs Global Harmonization?
  • Performance Based Oversight
  • Rulemaking Cooperation: towards a Regulatory Framework Based on Safety Oversight Data
  • The New Normal: Strategies for Safety Success in Fiscally Challenging Times
  • Compliance Assurance
  • Global Production: The New Reality

MARPA will be there and will be reporting on the new directions proposed by the regulators.

Help Shape the Future of Part 21!

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 ryan@washingtonaviation.com.  Please also send Ryan an email if you have any questions or would like to start tracking compliance costs.

MARPA Works on the Future of FAA Certification

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:

  • The FAA is committed to this project and has assigned significant staff resources to support the effort.  The FAA recognizes that this is more than a matter of complying with ICAO requirements: it represents the future of aircraft certification.
  • With sequestration and impending sequestration –related furloughs, it is even more important to streamline certification, and to have clear safety accountability for manufacturers.
  • In the area of the 787, the NTSB will be holding hearings and it is clear from the media coverage of the 787 concerns that the general public does not understand what FAA and industry do to ensure safety.  This tells us that outreach will be very important in order to educate people about how the new system (that the ARC recommends) will effectively support safety.
  • FAA is working on its five-year plan, and one of their initiatives is the single surveillance system (working with our partners to ensure global safety).  This project should support that effort by harmonizing to the ICAO SMS obligations.

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.

Seeking Working Group Members to Help Develop New FAA Manufacturing Regulations: Apply Now!

Have you ever wanted to influence the regulations that affect your business?  Well, NOW is your best opportunity to do so!

In January, we provided early notice to the PMA community that the FAA would be seeking industry experts to volunteer for working groups that will be rewriting the manufacturing regulations.  Now, we are collecting names and submitting them!  This is a tremendous opportunity to make sure that the regulations reflect the current state of the art for certification and approval processes.

The Part 21/SMS Aviation Rulemaking Committee (ARC) is undertaking a major project to review Part 21 and (1) to make it consistent with ICAO Standards for Safety Management Systems, (2) add regulations to create a design organization and (3) update the regulation as necessary.

The Part 21/SMS ARC has recently completed charters for four (4) working groups that will be helping to craft the Part 21 language as well as developing a new paradigm for FAA oversight of systems.  These worknig groups will report to the ARC, and will be where the real ground work occurs in changing the manufacturing regulations.  We are seeking MARPA members who would like to volunteer to be on these committees.  The first working group meetings will likely be April 3-5 and working group members will need to support the working group efforts through 2013 (final Reports are due December 10, 2013).

The four working groups are:

(1) Design Organization: This working group will develop regulations for design organizations, similar to the DOA regulation in Europe.  Design organizations will have more safety responsibility and accountability, and in turn would receive greater privileges.  The goal of this group will be to help the FAA create design organizations that can serve as the backbone for safety management.

(2) Safety Management Systems (SMS): This working group will help to integrate requirements for safety management systems in to the FAA manufacturing regulations.  The goal of this group will be to better align the FAA’s regulations with the requirements of SMS.

(3) Oversight: This working group will develop a new model for FAA oversight that will better reflect risk management in an era with shrinking government budgets and expanding industry need for government approval and/or certification.  The goal of this group will be to help the FAA create a program to ensure a consistently high level of safety with a dwindling resource pool.

(4) Cost-Benefit Analysis (CBA): This working group will examine the work of the first three working groups and will help develop the data and other tools that the FAA will need to perform a cost-benefit analysis.  The work of this group will be critically important to ensuring that the product from the entire ARC makes good safety sense and good economic sense.

This effort could reflect the most significant change in the U.S. aviation manufacturing regulations in over 50 years.  The results of this effort will touch all of us.  If you think you would like to serve on one of these working groups then please contact us immediately so we can send you more information.  We need to submit our recommendations to the ARC by the end of next week, so we need to hear from you by not later than Thursday, March 7.

MARPA Winter Meeting Scheduled for February 12, 2013 in Washington, DC

Don’t forget that the 2013 MARPA Winter Meeting will be held in Washington, DC on February 12, 2013.

Expected speakers include:

  • Joe White, Managing Director, Engineering and Maintenance, Airlines For America
  • John Milewski, PMA Program Manager, Federal Aviation Association
  • Kevin Cox, Partner, CliftonLarsonAllen LLP

Our topics for discussion will likely include PMA developments, streamlined PMA for non-safety-sensitive (NSS) parts, Instructions for continued airworthiness, air carrier needs, and tax laws and regulations with a particular affect on PMA parts manufacturers.  In addition to our speakers, we will be discussing our government affairs program and strategic planning for the Association.

The Winter meeting is an intimate opportunity to work closely with the Association and the Board on topics of special interest to MARPA members.

If you would like to attend the meeting, please RSVP to MARPA at (202) 628-6777. There is no charge for registering for this meeting; and the meeting is open to all MARPA members.

Your Input Needed: How Can the FAA Manufacturing Regulations Better Protect Safety?

The FAA is working to incorporate Safety Management Systems (SMS) elements into the existing Part 21 regulations for design and production.  As part of this endeavor, they have asked MARPA to assist them in an Aviation Rulemaking Committee (ARC).

MARPA has long been involved in SMS, having taken steps to educate the membership about the elements of SMS as well as been involved in drafting proposed regulations to implement SMS for FAA certificate holders, generally.

This new ARC represents an opportunity to ensure that the Part 21 regulations better reflect the safety needs of the industry and the public. It is a potential opportunity to remove regulations that no longer add value and to add regulations that would better ensure safety.

Following is a list of questions that we’ve developed that will help us to identify potential changes to Part 21 that might be made in the context of implementing SMS in the Part.  We would appreciate your answers to any or all of them.  While we cannot promise than any particular proposal will be implemented into the regulations, your thoughtful answer will help guide our participation on the ARC and will help us develop constructive recommendations to advance the regulatory revision process.  Where it is relevant, separating or distinguishing your answers with respect to the design, production, or other elements of the Part 21 regulations would be helpful.

Question One: What does the FAA do that you think is not necessary to safety?

  • design
  • production
  • other

Question Two: What does the FAA require you to do that you think is not necessary to safety?

  • design
  • production
  • other

Question Three: What additional activities do you think regulated aviation businesses should accomplish to better support safety?

  • design
  • production
  • other

Question Four: What additional support or information could the FAA provide that would better support safety?

  • design
  • production
  • other

Question Five: What information do you submit to the FAA that you think is not necessary to safety?

  • design
  • production
  • other

Question Six: What additional information could you submit to the FAA that you think would help promote safety?

  • design
  • production
  • other

How Can You Avoid Liability When Face With a Lawsuit? MARPA’s Conference Attendeees Know!

Tom Dunlap Discusses Strategies for Limiting Manufacturing Liability Concerns

At the 2012 MARPA Annual Conference, Attorney Tom Dunlap offered some advice to the conference attendees about tactics for avoiding liability when faced with a law suit.

He explained that law suits are inevitable when you are business, but liability is not inevitable in a law suit.

Mr. Dunlap gave a brief overview of the legal concepts involved in a lawsuit after an accident or incident, and also explained that although 75% of accidents are ultimately traced to pilot error, manufacturers are seen as having “deep pockets” and so will almost always be a target for plaintiffs in a law suit.

Mr. Dunlap also dispelled certain misconceptions, such as the myth that an FAA Certificate precludes liability.  He also offered operational and legal suggestions to help businesses mitigate potential liability.

MARPA’s President is a lawyer (that is, *I* am a lawyer), and MARPA firmly believes that effective prevention is worth the investment.  This is one of the reasons why hazard identification and risk mitigation in a Safety Management System can be an effective safety tool. Dunlaps’s comments provided a great guide for MARPA members seeking some advice on where to start in mitigating liabilities.

MARPA is currently in discussion with Dunlap to secure more useful advice for the members!

If you missed the 2012 MARPA Annual Conference, then you can still track MARPA’s developments and the industry and regulatory changes that affect the PMA industry by joining MARPA.

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