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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 340 posts for MARPA

Opportunity to Consult with a non-US Government on Certification

If you consider yourself a certification expert in mechanical flight controls or ULDs, then we may have a tremendous consulting opportunity for you.

MARPA has been contacted by a non-US authority that is seeking certification experts specialized in the following subjects:

  • Mechanical flight control system, landing gear with wheel and brake, engine mount for STC of the EC155B1 helicopter;
  • Testing of pallets and containers per SAE AS36102 in accordance with the TSO-C90 (Cargo Pallets, Nets and Containers (Unit Load Devices/ULDs)).

The non-US authority wishes to hire the certification experts for a 3-4 month engagement.  They expect the engagement to include

  • two onsite consultations for 4 days (seminar, Q&A, OJT, site visit, and so on);
  • Questions and answers via emails during the consulting period.

We were contacted because we have worked with this government in the past (and we’ve really enjoyed working with them).  If you are interested, then please contact Katt Brigham (by August 18th) and she will be happy to share the details with members of the MARPA community.

New FAA Guidance Could Affect Parts Related to Engines and APUs: Open for Comment

The FAA has published for public comment a draft advisory circular on “Uncontrollable High Engine Thrust/Power (UHT) Failure Conditions.”

The draft AC interprets 14 C.F.R. § 25.901(c) to require that the safety analysis include an analysis of UHT failures.  Under this new interpretation, when PMA parts potentially affect the powerplant or the APU, or if they affect the interface between airframe and engine/APU, it appears that the FAA may ask future applicants to meet 25.901(c).  Potentially, this could be applied to each aircraft on which the engine or APU is eligible for installation.

The regulation being interpreted currently reads as follows:

c) For each powerplant and auxiliary power unit installation, it must be established that no single failure or malfunction or probable combination of failures will jeopardize the safe operation of the airplane except that the failure of structural elements need not be considered if the probability of such failure is extremely remote.

This new interpretation appears to be a burden that was not anticipated at the time that the regulation was promulgated.  Subsection (c) was originally promulgated in 1970, and originally merely required that the 25.1309 analysis be performed (the preamble to the final rule clarified that this was sufficient). In 1970, the analysis was supposed to be an installation fault analysis.  The rule was changed in 1977 in order to “provide for a higher degree of airplane-engine compatibility.”  But the UHT issue appears to be unrelated to airplane-engine compatibility, so requiring this as an element of the 25.901(c) analysis seems like an expansion of what the regulation was designed to require.  Such an expansion of scope typically requires an amendment to the the regulation.

Moreover, it appears that the FAA has anticipated that the burden of this new analysis might be unreasonable, and therefore they have specifically invited design approval applicants to petition for exemption from this provision (the invitation exists within the body of the draft AC).

Do you see any impact to your PMAs (current or future)?  How does this affect your business?  Let us know so that MARPA’s comments on this policy can reflect your interests.

Comments on this draft AC are due to the FAA by September 4, 2017.  We would appreciate your comments to MARPA by August 28, so we can reflect them in our own comments.

New FAA Guidance on Propeller PMA Parts – Open for Comment

The FAA has published a draft policy statement on PMAs for critical propeller parts.  The draft policy statement is entitled “Parts Manufacturer Approval (PMA) for Propeller Critical Parts and Category 1 Propeller Parts.”  If this policy effects you, then we need to know your opinion before we file the MARPA comments on this draft policy!

The essence of the proposed policy appears to be:

  • Defines a set of parts subject to enhanced oversight that includes:
    1. Critical propeller parts identified by § 35.15 Safety analysis
    2. Parts identified as critical in FAA Order 8110.42D
    3. Category 1 parts defined in FAA Order 8120.23A [this could have the effect of applying critical parts requirements to parts that are not critical under the FAA regulations]
    4. Parts with airworthiness limitations
  • Defines certain parts as presumptively critical:
    • Certain blades, hubs, and counterweights
    • Certain primary load path blade retention parts, such as ferrules and blade clamps
    • Certain metallic blade erosion shields
    • Certain blades and counterweights
    • Certain blade pitch change pins
    • Certain pitch change links, yokes, and forks
    • Pitch change system parts:
      • Pressure cylinder, piston, actuator, seals, and springs
      • Beta feedback rods
      • Low and high pitch stops
      • Oil transfer tubes
    • All parts of the propeller control system:
      • Governors
      • Propeller control units
      • Propeller electronic controls
      • Propeller servo valves
  • Requires that an applicant seeking to PMA parts subject to enhanced oversight must coordinate the application with the certificate management ACO (for the type certificate) and the Engine and Propeller Directorate
  • Imposes on the PMA applicant a series of life management obligations for parts subject to the policy:
    1. The PMA applicant is responsible for determining if the part has been life assessed;
    2. A part specific certification plan is required for life assessed critical PMA propeller part(s);
    3. The part specific certification plan must include a fatigue life methodology that supports a continued airworthiness life management program (this appears to be something potentially more than the service management process required by the regulations).
    4. When managing propeller critical parts and category 1 propeller parts, the applicant must provide a program to monitor those parts and establish a life management program.

One concern is that a major propeller effect (as defined in 14 C.F.R. 35.15(g)(2)) is different from a hazardous propeller effect (as defined in 14 C.F.R. 35.15(g)(1)).  Only parts whose failures result in hazardous propeller effects are propeller critical parts under 14 C.F.R. 35.15(c).  And only propeller critical parts are required to meet the integrity establishment requirements of 14 C.F.R. 35.16.  But the policy document establishes additional classes of parts that will be subject to section 35.16.  Some parts with major propeller effects (as defined in 14 C.F.R. 35.15(g)(2)) could also be characterized as category 1 parts under FAA Order 8120.23A.  This policy memo appears to subject those parts to an inappropriate requirement by conflating them with propeller critical parts and requiring that they comply with the integrity establishment requirements of 14 C.F.R. 35.16.  This appears to be a potential de facto change to the regulations.

What do you think?  Do you have category one parts whose failure only reflects a major propeller effect and not a hazardous propeller effect?

Do you see any different impact?  Anything we’ve missed?  How does this affect your business?  Let us know so that MARPA’s comments on this policy can reflect your interests.

Comments on this draft are due to the FAA by August 31, 2017.  We would appreciate your comments to MARPA by August 24.

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.