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Aircraft Parts, aviation, FAA, FAA Design Approval, Legal, Manufacturing, Policy

Inappropriate Design Approval Holder Restrictions on the Use and Availability of Instructions for Continued Airworthiness

The FAA has published for comment a new draft Policy Statement that would restrict companies that publish Instructions for Continued Airworthiness (ICAs) from using the ICAs or the ICA licensing agreements as a vehicle for implementing certain types of unacceptable requirements.

The draft memo is entitled Inappropriate Design Approval Holder (DAH) Restrictions on the Use and Availability of Instructions for Continued Airworthiness (ICA).  It was announced in the Federal Register.

The FAA explains in this draft Policy Memo that some language in the ICAs will be deemed unacceptable.  This includes language that imposes anti-competitive requirements as well as language that undermines the FAA’s safety regime.  The purpose of the policy memo is describe some unacceptable language that  FAA offices should reject.  In describing the unacceptable language, the FAA is seeking to reduce the burden on maintenance providers in seeking appropriate maintenance instructions, and is also trying to support safety by reducing the possibility of maintenance error caused by application of incorrect ICA due to confusion of instructions.

This draft is a real solution to some of the issues that have been faced by MARPA members and their business partners. This draft does a good job responding to industry concerns about the safety affect of inappropriate ICA licensing agreements. There is some very strong language in the draft:

[A] DAH may not inhibit via contractual provisions an owner/operator from distributing ICA to current or potential future maintenance providers. Therefore, it is not acceptable for a DAH to limit the distribution of ICA by imposing contractual requirements or adding restrictive language that would control the use of ICA by an owner/operator with respect to the maintenance of its product.

In addition, while a DAH must identify the applicability of its ICA, the FAA will not accept restrictive statements or terms in ICA documents or related licensing agreements that purport to limit the appropriate availability (distribution) or use of the ICA where the FAA has determined the ICA continue to be acceptable for maintaining a DAH’s product or article with FAA approved replacement parts, articles, or materials installed (e.g., Parts Manufacturer Approval (PMA) items). While not exhaustive, the FAA does not find the following DAH practices acceptable under the provisions of 14 CFR §21.50(b) and related ICA airworthiness requirements:

1) Requiring the use (installation) of only 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 repair stations or other persons authorized by the DAH to implement the ICA.
4) Establishing, or attempting to establish, any restriction on the right of the owner/operator to disclose or provide the ICA to persons authorized by the FAA to implement the ICA.

Each of these examples represents a real-world situation in which a manufacturer has attempted to use the ICAs as a mechanism for gaining an unfair competitive advantage, at the expense of safety.

Comments are due to the FAA by December 5, 2011.  If you think the guidance reads well, be sure to send the FAA a positive message, supporting the guidance.  Comments should be sent to john.cerra@faa.gov.  Include in the subject line of your message the following: “PS–AIR–21.50–01, Inappropriate DAH Restrictions on the Use and Availability of ICA.”  Duplicate copies should also be sent to MARPA and also filed in the regulatory docket (go to http://www.regulations.gov and search for Docket Number FAA-2011-1097).

Useful links:

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About 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.

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