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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.
Jason Dickstein has written 337 posts for MARPA

Bob Cook to Retire from the FAA

Bob Cook from the FAA will be retiring after this week.  You may not know the name but you certainly know his work.

He has been involved in a tremendous amount of rulemaking and policy making efforts at the FAA.  The one that sticks in my mind is 14 C.F.R. 21.137.  Bob was part of the team tasked with coming up with a modern vision of quality assurance.  It would have been very easy to create a subjective rule that was vague and made compliance difficult; instead, 14 C.F.R. 21.137 very clearly establishes objective criteria expected in a modern quality assurance system.

How did  14 C.F.R. 21.137 come into being?  Bob once told me that they put together a wish list of quality system elements, and then he led a chopping block exercise in which they asked for each element (1) what safety value does it provide and (2) does the FAA really need to regulate this element?  This exercise allowed them to remove many elements that were nice to have, but that were not necessary and therefore did not need to be part of the regulation.  The result was a quality assurance regulation that serves as a model for the entire global industry.  It is the sort of regulation that no one complains about – no one thinks it is overbearing and no one thinks it falls short of what it should address.  That is a rare sort of regulation, indeed.  This was the sort of reasonable approach to regulation that we always expected from Bob Cook.

Bob sent an email announcing his retirement.  It read (in part):

To all those that I have worked with over this last 17 years in the FAA and 40+ in the aviation industry:

I will be retiring on June 23rd.  I wish to thank each of you for helping to make my time at the FAA both enjoyable and rewarding.  I have stated many times that this has been the best job I ever had, and I truly meant it.  The managers and the management team I worked for (while being frustrating at times) provided me with every opportunity to learn and progress within the organization.

To those that I had the pleasure of working with on aviation issues I want to thank you for all the time, effort and concern you placed on the continuous improvement of quality within our industry.  Your openness to share quality improvements and working, as an industry, through organizations such as the IAQG, AAQG, AIA, GAMA, and MARPA to establish quality standards and a quality system oversight processes that are used internationally, is one of the greatest achievements of which I had the pleasure to be involved.

* * *

After 40+ years of working in the aviation industry I expect it will be hard for me to just walk away so you may see me commenting on rulemaking as a concerned citizen.  If you do, I hope to see a better response than “Thank you for your interest in aviation safety”.  I will miss working with you on issues that makes our aviation industry the safest and most respected in the world.

* * *

Bob Cook
Very Soon to be a Private Citizen

We will miss his attention to detail, his willingness to listen, and his commitment to safety.

If anyone wants to send Bob a thank-you or goodbye message, then he is still in the office this week, and his email is Robert.cook@faa.gov.

Standard Parts Do Not Need PMA (but it can be an option)

A consultant recently told me that his client is planning to produce parts under NASM22529.  He asked for advice about the process for showing compliance to get a PMA.

NASM22529 is an AIA/ NAS standard.  It replaced a milspec of the same number that was retired in 1996.  As an AIA (NAS) specification, it is recognized as the sort of industry specification that supports ‘standard parts’ under the FAA’s interpretation of the term.

Standards parts can be manufactured and sold without a PMA.  The regulatory authority for this can be found at 14 C.F.R. § 21.9(a)(3).  Therefore a PMA is not necessary in order to produce standard parts intended to be consumed in civil aviation.

While it is not necessary to seek FAA approval to manufacture a standard part,it is nonetheless possible to get a PMA for a standard part, and in some cases (like fasteners) it can also be possible to obtain a TSOA for a standard part.

There are a number of reasons why someone might seek to obtain FAA approval for a standard part.  This sort of FAA approval can be valuable for marketing purposes.

If you seek FAA approval for a part, then the design of the part must be shown to meet the appropriate FAA standards, and the production quality assurance system must be developed to meet FAA requirements.

The same consultant also asked whether AS9100 certification satisfies all or most of the PMA requirements?  The AS9100 series of specifications were specifically designed to support compliance to aviation regulatory standards, but compliance with AS9100 should not be confused with compliance to FAA regulations.  The answer to this question can depend on the implementation of the AS9100 system.

AS9100 will typically satisfy requirements under 14 C.F.R. § 21.137, as well as certain other requirements, but it may does not satisfy all FAA approval requirements (A well-developed AS9100 system can be developed to provide management assurance of compliance with all of the relevant FAA requirements but it can also be developed to omit some of them).

The design side of the manufacturing process is a process that is particularly susceptible to a finding that the AS9100 system is not adequate, alone, to ensure compliance to FAA regulations.

Looking to learn more about PMAs?  You may want to consider attending the MARPA Conference in Orlando on October 25-26, 2017.  The FAA has confirmed that they will be teaching a “PMA 101” workshop as part of the Conference.  You can find out more at http://pmaparts.org/annualconference/about.shtml

Manufacturing Receiving Inspection is Not the Sort of “Inspection” that requires Drug and Alcohol Testing Under DOT Standards

Are manufacturers required to drug test their receiving inspectors?  A recent FAA legal interpretation explains that receiving inspectors typically are not subject to the DOT drug and alcohol testing rules.

The FAA has issued a legal interpretation that confirms that receiving inspectors who are receiving articles for stock are not performing maintenance activities, and therefore they are not among the personnel who are required to be subject to DOT-regulated drug and alcohol testing.

This effort was spearheaded by our industry colleagues at ARSA, but the final request for interpretation was jointly filed by 15 organizations (including MARPA).

The root of the issue is that the Part 120 requirements require air carriers to ensure that their maintenance subcontractors are tested under the drug and alcohol rules. This requirement is applied to those who perform aircraft maintenance duties – but those who do not perform such duties are not subject to the testing requirement.  Inspection is described as a species of maintenance in the FAA’s definitions.

So what about manufacturers who produce in support of an air carrier’s maintenance efforts?  Are their receiving inspectors performing maintenance when they inspect incoming articles?

The FAA explained:

14 CFR part 43 applies to the performance of maintenance and preventative maintenance. Sections 43.9 and 43.11 establish recordkeeping requirements for tasks associated with maintenance and preventative maintenance. These recordkeeping requirements have never been applied to tasks associated with receiving articles for stock. Individuals who perform receiving tasks ensure that there is no visible damage to the packaging or the enclosed items, and that the articles were obtained from an approved or acceptable source. Persons performing these tasks compare part numbers, serial numbers, quantity, etc. with the purchase order and confirm that the items match the purchase order and that they are not damaged. These tasks are not maintenance or preventative maintenance activities. Therefore, employees receiving items for stock are not safety sensitive employees under part 120 and should not be included in the pool of employees subject to drug and alcohol testing.

 

Finding Suppliers in Taiwan

Are you looking to expand your global supply base?  The Taiwan Trade Center is raising awareness about the Taipei Aerospace & Defense Technology Exhibition (TADTE), which will be held in Taipei on August 17 – 19.  In order to entice potential business partners to the show, the Taiwan Trade Center is offering generous subsidies to MARPA members interested in attending the exhibition.  Here is their offer:

For qualified buyers, we offer the following incentives:

  1. For companies with annual sales exceeding US$30 million that are related to the industries profiled in the show, TAITRA will offer 1 R/T economy-class ticket scheduled stay during two full show-day periods between August 17 and August 19, 2017, 1 room with a maximum allowance of NT$15,000 (tax included) to be used toward lodging (up to 4 nights being in August 16 to August19, 2017) and airport pickup to-from the accommodating hotel. Attending procurement meetings is requested.

  2. For companies with annual sales exceeding US$5 million that are related to the industries profiled in the show, TAITRA will offer 1 R?T economy-class ticket scheduled stay during two full show-day periods between August 17 and August 19, 2017. Attending procurement meetings is requested.

  3. For companies with annual sales exceeding US$0.3 million that are related to the industries profiled in the show, TAITRA will offer 1 room with a maximum allowance of NT$ 15,000 (tax included) to be used toward lodging (up to 4 nights being in August 16 to August 19, 2017) and airport pickup to-from the accommodating hotel.

In order to accept this offer from the Taiwan Trade Center, MARPA members must complete the 2017 TADTE Registration Form. The completed form should be emailed to Unice Wu from the Taiwan Trade Center – New York at unicewu@taitra.org.tw. There are a limited number of subsidies available, so apply ASAP!

 

Taiwan Details:

Despite the ‘One-China-Policy,’ Taiwan has its own Civil Aviation Authority which is separate from the CAA of China. Taiwan has processes for issuing TSOA and PMA. Under a bilateral agreement, the US accepts new TSO appliances from Taiwan that meet the performance standards of an FAA TSO under an FAA letter of TSO design approval. They also accept replacement parts for those TSOA articles. The U.S. currently does not accept PMA parts from Taiwan.

EASA has a working arrangement with the Taiwan CAA for the validation of EASA certificates. This appears to be a one-way arrangement; EASA does not appear to have a process for validating Taiwan CAA approvals.

In defense contracts, Taiwan is treated by the United States as a major non-NATO ally (22 C.F.R. § 120.32).

FAA Proposes Special Conditions for Non-Rechargeable Lithium Batteries

The FAA has proposed a set of special conditions that would apply to a set of certification projects involving an inflatable restraint system with non-rechargeable lithium batteries.  These special conditions could have far-reaching effect that goes beyond the STC projects for which they are intended.

The special conditions would apply to the aircraft listed on the approved model list in an AmSafe STC. The proposal does not list those aircraft – and as the AmSafe STC is not available to the general public, the list is a ‘secret’ list.  This could make specific application of the special condition tricky to identify.  This is concerning because special conditions become part of the type certificate basis, so konwing hich aircraft are potentially affected would be important.

It is possible that anyone attempting to obtain PMA for articles on those aircraft that are affected by the AmSafe STC (or by the non-rechargeable lithium batteries special conditions) would also be expected to comply with the special conditions.  Therefore anyone with an interest in battery PMAs or seat PMAs/TSOAs ought to examine this proposal to establish whether it could affect their business – now or in the future.

The FAA proposed the following special conditions for Non-Rechargeable Lithium Battery Installations, which would take the place of the current storage battery standards under the regulations:

In lieu of Sec. 25.1353(b)(1) through (4) at Amendment 25-123, each non-rechargeable lithium battery installation must:
1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.
2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.
3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.
4. Meet the requirements of Sec. 25.863.
5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.
6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.
7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.
8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery’s function is required for safe operation of the airplane.

Note: A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging. For the purpose of these special conditions, a “battery” and “battery system” are referred to as a battery.

The discussion associated with the proposed special conditions states that the special conditions are “necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.”  Because of their special application to non-rechargeable lithium battery installations, it is possible that this could serve as the model for a regulation that applies to non-rechargeable lithium batteries.

US Government Seeks to Remedy Unfair Competition Affecting Aerospace Trade

I had a great conversation today with the International Trade Administration (ITA).  They are concerned about non-US companies misusing intellectual property (“IP”) claims to in ways that give them an unfair commercial advantage.  I pointed out some situations where IP rights are claimed, but do not really apply, and this is used as justification for a foreign company failure to comply with regulations, causing commercial disadvantage to US companies who do comply with the regulations.

Our next step is to try to entice them to meet with some members to hear their concerns.  We focused in our initial discussion on IP because tat was the focus of the people who were present, but they felt that some of the issues amounted to technical barriers to trade and suggested that they might want to have a technical barriers to trade specialist hear about these issues, too.

I offered to assemble a few affected parties from US aerospace companies who could tell them “the whole story.”  That is where YOU come in.

   Are any of you interested in attending a meeting (not sure if it will be in-person or telephonic) where you would have an opportunity to discuss the details of IP situations with ITA representatives? 

Remember that ITA’s focus is not going to be on general unfair competition – just unfair competition that affects international trade and puts the US at a disadvantage – so we need to be focused on those issues.

Remember also that this meeting is still in the early planning stages – they have not committed to it yet and if it happens then I want to make sure that we have some strong issues to share with the ITA.

If you feel that your aerospace business is being affected by unfair competition from non-US competitors (especially as a consequence of intellectual property claims), please let us know as we work with ITA to set up the next meeting.

Will the New FAA Manufacturing Rules Lead to a “Quicker Approval Process”?

Twice in the preamble to the new part 23 rule, the FAA explains that “many part suppliers may benefit from this performance-based rule through an expected quicker approval process.”

This seems to suggest that the parts approval process will be expedited because it will be easier for an applicant for a Part 23-based PMA to demonstrate compliance under the performance-based regulations.  The question on everyone’s lips is whether that will turn out to be true.

While the majority of our members are focused on parts for commercial aviation, a sizeable minority of our members produce parts for Part 23 airplanes.  It is important to MARPA that these members continue to be able to obtain PMAs on a equitable and safe basis.  It is equally important that they be able to enter the marketplace on an even playing field.

The new rules will facilitate use of non-standard mechanisms for approval.  Under current policy (which is supported by the rule change), manufacturers may build Angle-of-Attack indicator systems according to standards from the American Society for Testing and Materials (ATSM).  They may apply to the FAA for approval of the design via a letter certifying that the equipment meets ATSM standards and was produced under required quality systems. The FAA’s Chicago Aircraft Certification Office (ACO) processes all applications to ensure consistent interpretation of the policy.  This sort of model may be used more often under the new rules.

One approach for MARPA members might be to identify other articles that could be described by industry consensus standards, and to help develop those standards in partnership with the FAA.

For PMA projects for Part 23 airplanes, the certification basis might be a prior revision level of Part 23, so be careful that you choose the right certification basis for your project.  Because of this, the direct effect on PMA applications of the rule changes may not be fully understood for many years.  But to the extent that the new rules permit competitors to enter the marketplace more easily (but always with adequate showings of airworthiness), the rules could represent a benefit to an industry where competition and safety innovation have gone hand-in-hand.

The new rules go into effect August 30, 2017.  We are eager to hear your experiences with them.

“Expected Operating Conditions” as a PMA Parts Design Metric

The FAA has revised part 23 (the regulations for non-transport airplanes), and PMA applicants seeking approvals for parts that meet Part 23 requirements will need to pay attention to these changes (but remember that your certification basis might be a prior revision level of Part 23).

One change is the addition of a design metric related to ” the expected operating conditions of the airplane.”

The current rules (which are being revised) state that a designer must “take into account the effects of environmental conditions, such as temperature and humidity, expected in service.”

§ 23.603 Materials and workmanship.

(a) The suitability and durability of materials used for parts, the failure of which could adversely affect safety, must –

(1) Be established by experience or tests;
(2) Meet approved specifications that ensure their having the strength and other properties assumed in the design data; and
(3) Take into account the effects of environmental conditions, such as temperature and humidity, expected in service.

(b) Workmanship must be of a high standard.

The new Part 23 rule will require applicants for PMA for part 23 airplane parts to “design each part, article, and assembly for the expected operating conditions of the airplane.”

Sec. 23.2250 Design and construction principles.

(a) The applicant must design each part, article, and assembly for the expected operating conditions of the airplane.
(b) Design data must adequately define the part, article, or assembly configuration, its design features, and any materials and processes used.
(c) The applicant must determine the suitability of each design detail and part having an important bearing on safety in operations.
(d) The control system must be free from jamming, excessive friction, and excessive deflection when the airplane is subjected to expected limit airloads.
(e) Doors, canopies, and exits must be protected against inadvertent opening in flight, unless shown to create no hazard when opened in flight.

A related regulation continues to use the “likely environmental conditions” language of the prior regulations:

Sec. 23.2260 Materials and processes.

(a) The applicant must determine the suitability and durability of materials used for parts, articles, and assemblies, accounting for the effects of likely environmental conditions expected in service, the failure of which could prevent continued safe flight and landing.
(b) The methods and processes of fabrication and assembly used must produce consistently sound structures. If a fabrication process requires close control to reach this objective, the applicant must perform the process under an approved process specification.
(c) Except as provided in paragraphs (f) and (g) of this section, the applicant must select design values that ensure material strength with probabilities that account for the criticality of the structural element. Design values must account for the probability of structural failure due to material variability.
(d) If material strength properties are required, a determination of those properties must be based on sufficient tests of material meeting specifications to establish design values on a statistical basis.
(e) If thermal effects are significant on a critical component or structure under normal operating conditions, the applicant must determine those effects on allowable stresses used for design.
(f) Design values, greater than the minimums specified by this section, may be used, where only guaranteed minimum values are normally allowed, if a specimen of each individual item is tested before use to determine that the actual strength properties of that particular item will equal or exceed those used in the design.
(g) An applicant may use other material design values if approved by the Administrator.

What does this “expected operating conditions” language in section 23.2250 mean for test & computation applicants?  This phrase is used in AC 25-25A in the context of returning a stall protection to non-icing setting.  It is also used in AC 20-151 for approval of TCAS units.  But neither of these resources describe what this phrase means in the context of a meeting regulatory requirements.

The FAA explains in the preamble to the rule what it means when it says “expected operating conditions.”  The FAA’s explanation is not perfectly illuminating, but at least it provides some guidance about what sort of operating conditions should be anticipated and accounted-for in the design process:

“The FAA did not intend to limit this requirement only to the normal operational environment because, if the failure conditions are an expected environment, then an applicant should consider those conditions and protect the structure.  Deterioration or loss of strength due to corrosion, weathering, and abrasion are all examples of failure conditions because capability has been degraded. For many years, the rule has expressly required consideration of these causes. It was an expected environment for items to be corroded, weathered, and abraded, but applicants had to consider any other causes too.”

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.

Minor Change to the Instructions for Continued Airworthiness Rule

Happy Tuesday!  This week we are offering five new features of the FAA’s recent rule changes that alter the small airplane rules, but have some minor effects on all other aircraft as well.

The FAA has made very minor changes to 14 C.F.R. § 21.50(b).  This is a very important rule to many of our readers because it establishes the design approval holder’s obligation to provide and make available Instructions for Continued Airworthiness.

Here are the changes (marked with strike-through for deletions and underlined for additions):

(b) The holder of a design approval, including either the a type certificate or supplemental type certificate for an aircraft, aircraft engine, or propeller for which application was made after January 28, 1981, must furnish at least one set of complete Instructions for Continued Airworthiness to the owner of each type aircraft, aircraft engine, or propeller upon its delivery, or upon issuance of the first standard airworthiness certificate for the affected aircraft, whichever occurs later. The Instructions for Continued Airworthiness must be prepared in accordance with §§ 23.1529, 25.1529, 25.1729, 27.1529, 29.1529, 31.82, 33.4, 35.4, or part 26 of this subchapter, or as specified in the applicable airworthiness criteria for special classes of aircraft defined in § 21.17(b), as applicable. If the holder of a design approval chooses to designate parts as commercial, it must include in the Instructions for Continued Airworthiness a list of commercial parts submitted in accordance with the provisions of paragraph (c) of this section. Thereafter, the holder of a design approval must make those instructions available to any other person required by this chapter to comply with any of the terms of those instructions. In addition, changes to the Instructions for Continued Airworthiness shall be made available to any person required by this chapter to comply with any of those instructions.

The article “the” is changed to “a” in the first sentence.  This clarifies that there may be more than one TC/STC for a design, and that each design approval holder has an independent obligation with respect to Instructions for Continued Airworthiness.  The phrase “for Continued Airworthiness” as added to the second sentence of this subsection to clarify that the reference is to Instructions for Continued Airworthiness (and not to any other instructions).

As you can see, these changes are fairly insignificant and they are clearly meant to help the reader correctly interpret the existing language.