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New FAA Manufacturing Rule Permits Greater FAA Flexibility in Building Approval Programs

One of the problems that industry identified with the 2009 manufacturing rule changes was that 14 C.F.R. § 21.8(d) allows an article to be approved using any method approved by the FAA, but the rule at 14 C.F.R. § 21.9(a) limits the FAA’s ability to use that provision by stating that a replacement or modification part may not be produced unless it is produced under one of the six categories listed under § 21.9(a).

This is a real issue.  The FAA has used the “approved in any other manner approved by the FAA” in the past – for example, to support the 1995 enhanced enforcement program which grandfathered non-PMA parts when the applicant applied for PMA within a certain time limit.  Use in that circumstance and others has demonstrated that sometimes the FAA needs a ‘safety valve’ in order to approve articles using non-standard methods.  and that safety valve was closed in 2009.

This is an issue that a number of us have raised before the FAA.  The solution is simple – amend 21.9(a) to feature language analogous to the 14 C.F.R. § 21.8(d) “approved in any other manner approved by the FAA” language.

In December, the FAA published a significant final rule that made major changes to Part 23.  It also provided some spot-fixes to other regulatory parts.  One of those changes implemented the requested 21.9(a) change.

The FAA had an additional rationale for the change we requested.  The disparity between 14 C.F.R. § 21.8(d) and 14 C.F.R. § 21.9(a) inhibited the Small Airplane Directorate fro implementing a policy that they wanted to implement to support a streamlined approval process for low-risk articles (like angle-of-attack indicators for general aviation aircraft). It also opens the door to future FAA streamlining in areas where risk analysis suggests that streamlining is appropriate.  The new language states:

(a) If a person knows, or should know, that a replacement or modification article is reasonably likely to be installed on a type-certificated product, the person may not produce that article unless it is –

(1) Produced under a type certificate;

(2) Produced under an FAA production approval;

(3) A standard part (such as a nut or bolt) manufactured in compliance with a government or established industry specification;

(4) A commercial part as defined in § 21.1 of this part;

(5) Produced by an owner or operator for maintaining or altering that owner or operator’s product; or

(6) Fabricated by an appropriately rated certificate holder with a quality system, and consumed in the repair or alteration of a product or article in accordance with part 43 of this chapter; or

(7) Produced in any other manner approved by the FAA.

As you can see, the simple addition on the end of the regulation aligns it with section 21.8(d), and permits the FAA to approve articles using non-standard mechanisms where circumstances demand such flexibility.

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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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