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 333 posts for MARPA

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.

New Small Aircraft Rules May Change the Standards for PMAs

This week you can look forward to 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 new Part 23 rules become effective on Wednesday, August 30, 2017.  All PMA applications subject to Part 23 and submitted on or after that date should ensure that they show compliance to the proper regulations.  Your certification basis might be a prior revision level of Part 23, but as time marches on more and more projects will fall within the new Part 23 rules.

In some cases, the new Part 23 rules may make some significant changes.

One example is found in the changes involving instruments.  The old rules required an airspeed indicator, an altimeter, a magnetic direction indicator, and a speed warning device for turbine engine powered airplanes.  14 C.F.R. § 23.1303 (2011).  The new corollary rule does not require any specific flight instrument – instead it requires:

Sec. 23.2615 Flight, navigation, and powerplant instruments.

(a) Installed systems must provide the flightcrew member who sets or monitors parameters for the flight, navigation, and powerplant, the information necessary to do so during each phase of flight. This information must–

(1) Be presented in a manner that the crewmember can monitor the parameter and determine trends, as needed, to operate the airplane; and
(2) Include limitations, unless the limitation cannot be exceeded in all intended operations.

(b) Indication systems that integrate the display of flight or powerplant parameters to operate the airplane or are required by the operating rules of this chapter must–

(1) Not inhibit the primary display of flight or powerplant parameters needed by any flightcrew member in any normal mode of operation; and
(2) In combination with other systems, be designed and installed so information essential for continued safe flight and landing will be available to the flightcrew in a timely manner after any single failure or probable combination of failures.

This new language leaves it up to the designer to identify the parameters for the flight that the flight crew must set or monitor.  This potentially undermines other related regulations, though.  For example, the instructions for continued airworthiness regulations require the design approval holder to publish instructions “for each appliance required by this chapter” [meaning the FAA’s safety regulations].  Under the old regulations, it was clear that the instructions for the airspeed indicator, the altimeter, and the magnetic direction indicator were required to be part of the instructions for continued airworthiness.  Under the new regulations, this linkage is less plain, and will likely lead to a need for additional FAA guidance.

On the other hand, the new performance-oriented standard may allow PMA applicants greater freedom in designing new improvements to instruments in order to give the flight crew greater information and greater control over the information.

Copa Airlines Golf Tournament – Help Copa Give Back

Copa Airlines is sponsoring a golf tournament on February 17-19 to raise money for five Panamanian charities.

  • National Association of Chemotherapy Patients (supporting cancer patients in Panama)
  • Centro de Alcance Positivo por mi Barrio 24 de Diciembre (a USAID cooperative effort to support troubled youth)
  • Parroquia de Fatima (which feeds 650 hungry people in Panama City every day)
  • Nutrehogar (preventing malnutrition of children from the most impoverished communities in Panama)
  • CEPACEI (providing kindergarten programs in Tocumen)

For five years, Copa’s aim with this golf tournament has been to support the battle against cancer, to support the less fortunate, and to promote education.

Those of you who were at the MARPA Conference last month heard Ahmad Zamany’s comments in support of the PMA community.  Ahmad is Copa’s Vice President of Technical Operations and he has been a vocal supporter of PMAs – extolling their reliability improvements, and publicly announcing his airline’s refusal to sign any leasing agreement that would seek to prevent his airline from using FAA-PMA parts.

Copa has been a leader in the aviation community – this is a great opportunity to partner with Copa in its efforts to make the world a better place (not to mention the marketing opportunities for those who seek to do business in South and Central America).

Please contact Wendy Ross (office +5072 38 1850, cell +5076480-464o3, or email for further details on how you can participate in the tournament as a golfer or join as a sponsor (or both).


Don’t Panic: Why the Election Results Should Not Undermine Aviation Business

I have been watching the election results here in China (I am in China for an MRO & Aftermarket Conference in Shanghai). Before the election results began to roll-in, I flipped through the Chinese language channels and passed a news station that had a graphic of Donald Trump with a collection of speech bubbles. Every speech bubble was filled with the word “China” in English. I could not understand the newscasters, who spoke in Chinese, but it was clear that they were expressing concern over what a Trump victory could mean for China. This sentiment, in different forms, has been expressed to me by colleagues from both Asia and Europe, who wonder what President Trump could mean for international business.

This is a legitimate concern. CNN reported that trade was one of the three most important ‘exit poll’ issues that people think Donald Trump will be able to address as President (along with immigration and terrorism). As a candidate, President-elect Trump has expressed his desire to “tear-up” a number of international agreements, including NAFTA and the (as-yet unimplemented) Trans-Pacific Partnership.

But for our industry – for aviation – the level of concern should be a little different. International transactions involving aircraft and their parts are generally governed by the Agreement on Trade in Civil Aircraft (ATCA). No one is talking about eliminating this agreement.  Part of the reason that this agreement is likely to be safety from the new Administration’s ‘red pen’ is because the US has always enjoyed a favorable aerospace trade balance.

ATCA expresses that aircraft and their parts will cross international borders free of tariffs.  They will also pass free of technical barriers to trade (that is, technical regulations and standards will be non-discriminatory, will remain focused on safety, and will not create unnecessary obstacles to aviation trade).

So the agreements like NAFTA and TPP that permit free trade in goods are unnecessary to most of the aviation industry because so many aircraft parts are already insulated from the limits that NAFTA and TPP would proscribe for other goods.

There are parts that fall outside of the scope of the ATCA. You can see a discussion of these parts here.  Some of these parts may still be subject to tariffs; and tariffs on these parts could have been lowered or eliminated by agreements like NAFTA and TPP.  Repudiation of such agreements could lead to continuation or implementation of tariffs on these parts.  But most aircraft parts remain within the tariff-protected category of ATCA.

Probably the biggest concern is not a legal issue, nor an issue of how the new Administration will pursue trade agreements with the US trading partners; rather the most significant issue will be the psychological fall-out of unrelated trade issues.  If the US imposes restrictions on the import of unrelated Chinese goods, then this could adversely affect the desire of Chinese buyers to purchase aircraft parts from America.  While this may not be a limit directly related to the regulatory policies of the new Administration, it reflects a real-world concern; but we can address this real world concern with real-world remedies.

The best way to address these concerns is to reach out to your trading partners – let them each know that you remain committed to the relationship – and let them know that you are going to work to ensure that your government remains open to your business relationships.  Let them know that the new Administration will likely have significant affects on US policy; but it is less likely to affect aviation.  In fact, the FAA Administrator serves a five-year term in order to better insulate the FAA Administrator from political concerns that might interfere with the FAA’s safety focus.  Unlike the Assistant Administrators, who are political appointees, the FAA official in charge of safety regulations (and the bilateral agreements which affect trade) is a member of the Senior Executive Service.  She is not subject to summary dismissal by the President.  Because of this, the  Trump Administration will be unlikely to immediately affect the FAA’s senior leadership that impact the way that the FAA handles international aircraft parts transactions.  So ‘business as usual’ is a very real possibility.

MARPA will do its part, as well. We will continue to work with the US Commerce Department on policies that advance the interests of the community of FAA-approved aircraft parts producers.  We will also continue to work with the FAA leadership on the technical and safety issues that can affect trade in civil aircraft parts.  And we will continue to let our trading partners know that PMA parts are safe, FAA-approved components that can be trusted to keep aviation safe.

In the immortal words of Douglas Adams, “Don’t panic.”

New Required Language for Exports

A new regulation has changed the destination control statement (“DCS”) that is required on all exports of PMA aircraft parts.

PMA aircraft parts are typically exported under the jurisdiction of the Commerce Department’s Bureau of Industry and Security (BIS).  If you export aircraft parts, then the BIS regulations require a DCS.  These regulations have been changed to harmonize the DCS to the same language as the ITAR DCS.

Te DCS is placed on each export control document that accompanies an export shipment. The export control documents that are required to show this statement include the invoice, the bill of lading, the air waybill, and any other export control document that accompanies the shipment from its point of origin in the United States to the ultimate consignee or end-user abroad.

This is sometimes known as the ‘non-diversion statement’ because the current version includes language stating that “diversion contrary to U.S. law is prohibited.” The purpose of the DCS was to alert parties outside the United States that the item is subject to the US export regulations.

The rules have always held that compliance with the comparable ITAR requirement was an acceptable means of compliance where the shipment included both ITAR and EAR-controlled articles. The comparable ITAR requirement requires slightly different language. Many people nonetheless found the different language in each regulation to be confusing.

The Commerce Department has changed their DCS language to harmonize it with the ITAR-required-language. This is meant to make compliance easier. Starting on the implementation date of the rule (November 15, 2016), exporters of articles subject to BIS jurisdiction (those with ECCNs) should use the following destination control statement on all exports:

“These items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations”

In addition, the DCS should show the Export Commodity Classification Number (ECCN) for any 9×515 or ‘600 series’ (nx6nn) items being exported.

There are exceptions to this DCS requirement for EAR 99 exports and also for exports under license exceptions BAG (baggage) and GFT (gift parcels and humanitarian donations), but typically these do not apply to exports of PMA aircraft parts.