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.
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.
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 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.
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 :
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)):
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.
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.
We previously wrote in this space about a new Draft Policy Statement issued by the FAA concerning the vibration surveys and engine surveys required under section 33.83 of the Federal Aviation Regulations. The draft guidance attempts to more narrowly address the FAA’s concerns about full engine test for type certificate applicants.
MARPA plans to provide comments on this Draft Policy Statement to the FAA and has sent a draft of our comments to the MARPA Technical Committee for review. If any of our members wish to review our draft comments to provide their feedback we would love to hear from you. Please email Ryan Aggergaard at firstname.lastname@example.org if there are particular issues in the draft statement you believe should be addressed so that we can incorporate our members’ concerns.
MARPA also encourages our members to file their own comments on the Draft Policy Statement. Comments are due to the FAA by November 21, 2014. Comments should be emailed to Dorina Mihail at email@example.com. Comments can also be mailed to her at:
Federal Aviation Administration
Engine and Propeller Directorate
Standards Staff, ANW-111
12 New England Executive Park
Burlington, MA 01803
MARPA looks forward to your comments.
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).
We would be interested in hearing from any MARPA member who is affected by one of these new advisory circulars.
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.
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.
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 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.
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.
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).
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.
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.
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.
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 firstname.lastname@example.org 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.
This year, MARPA will be attending the 58th Annual Air Carrier’s Purchasing Conference. As a benefit to our members, MARPA plans to feature member-company literature in our booth to allow you to make connections with the large number of air carriers and suppliers registered for this event. This is just one of the benefits of MARPA membership. ACPC offers an excellent opportunity to have your company’s materials available during the Aviation Networking Forum.
In order to help us feature member companies in the MARPA booth, members must ship their literature to us at MARPA headquarters. To ensure we are able to showcase your literature, you must follow these steps:
1. Act quickly! ACPC runs September 13 – 16, 2014. You should plan to have your literature arrive absolutely no later than Wednesday, September 10th.
2. Ship your package to:
2233 Wisconsin Ave, NW
Washington, DC 20007
3. Email Katt Brigham at MARPA with your package tracking information. This should include the date the package was shipped and the estimated date of arrival. You should also include a description of the contents of your package so we know what to look for.
Are you planning to attend ACPC? Would your company like MARPA to target specific fleets or Air Carriers for our Airline Round Table Session selections? Contact MARPA today to let us know! MARPA is excited to be able to offer opportunities like this to its members. If you have any questions or comments, please contact Katt at (202) 628-6777 or by email at email@example.com.
The FAA has released Notice 8110.116, which stresses the importance of writing clear notes in the Type Certificate Data Sheet (TCDS), and of ensuring that those notes are consistent with FAA policy. This new guidance can be very valuable to everyone in the industry. The value to TC applicants and holders (who create draft TCDS for FAA adoption) is obvious, but less obvious are the subtle and not-so-subtle admonitions against using the TCDS for anti-competitive effect.
One valuable element of this guidance is that it stresses certain things that should not appear in the TCDS. For example, in paragraph 6(a)(6), the guidance advises against language that limits work to a scope narrower than permitted by the regulations:
(6) Do not include requirement that is non-regulatory in the notes. For example: “This aircraft shall be maintained in accordance with the BHT-427 Maintenance manual.” This note implies that BHT-427 is the only source for maintaining the aircraft, and conflicts with 14 CFR 43.13(a) which states “Each person performing maintenance . . . shall use methods . . . or other methods acceptable to the administrator.”
This admonition is consistent with FAA guidance that has prohibited language limiting operators options in seeking repairs. E.g. PS-AIR-21.50-01: Type Design Approval Holder Inappropriate Restrictions on the Use and Availability of Instructions for Continued Airworthiness (March 23, 2012). In the past, there have been problems with manufacturer’s guidance that seeks to limit operators’ repair options, which in turn has had an adverse effect on independent repair stations who are qualified by the FAA to perform the same repairs. Other language in the guidance highlights the prohibition against anti-competitive statements by stating:
Avoid language promoting a TC holder or their suppliers as the sole source for maintenance or overhaul.
It is contrary to 14 CFR parts 43 and 21 to include a note that all repairs or modification schemes must be approved by the TC holder prior to FAA approval.
In a similar vein, the guidance also forbids use of notes that could be interpreted as statements of FAA General Policy. The obvious reason for this is because the TCDS should not be used as a vehicle for establishing FAA policy. The example that is given is useful in its own right, because this is clearly not a statement of FAA policy, despite the fact that some government prosecutors have tried to promote similar policies:
(8) Avoid notes that can be interpreted as FAA general policy. For example: “Reuse of parts and assemblies that have been involved in an accident is not permitted unless approved by FAA Engineering.”
In subsection 6(a)(10), the FAA advises against the use of brand names, but in subsection (11), the FAA requires that when a specific brand name is used, then the note must also advise of the possibility of using FAA-approved alternatives:
(11) If a specific brand name material needs to be listed, then you must state that an equivalent material is also may be approved. For example: “SOHIO BIOBOR JF biocide additive is approved for use in fuel at a concentration not exceeding 270 PPM. Use of other, equivalent material, may be approved by the FAA.”
Aviation is a competitive industry, but some companies have attempted to use FAA-approved and FAA-acceptable documents as levers to inhibit competition. The FAA has repeatedly asserted that its job is safety – not competition – and that it will not allow its approvals to be used as independent inhibitors of competition where no safety interest is served. While the main purpose of this new guidance is to standardize the layout of TCDSs, it also includes important admonitions that should help prevent anti-competitive behavior.
Don’t forget to register today for the 2014 MARPA Conference! The Early Bird discount expires tomorrow, August 15th, so register today and save!
The 2014 MARPA Conference has a lot of opportunities to offer! Join Keynote speakers Ahmad Zamany, VP of Technical Operations at Copa Airlines, and Mike Arata, Director of Engineering at United Airlines! Learn about the newest developments in international PMA markets like Japan, Latin America, and Europe. Dive into recent COS updates and Part 21 regulatory changes to educate your company. Find the financial stragegy you need to guide your company through the PMA landscape. The Conference Agenda is packed with the speakers you want to see, and with networking opportunities! Your customers will be there… why won’t you?
To register, just click here for a registration form and hotel information. If you have any questions, contact MARPA by calling (202) 628-6777. We look forward to seeing you in Las Vegas.