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aviation, FAA, FAA Design Approval, Manufacturing, Policy, Repair Stations, Uncategorized

New TCDS Guidance Stresses Avoidance of Anti-Competitive Language

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.

and

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.

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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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