Do you rely on a Designated Engineering Representative (DER) to approve data for your business? Do you use DMIRs for issuing 8130-3 tags? If you do, then you know how critical designees can be to the parts approval process. Often, though, designees are required by the FAA to do things that the FAA employees themselves are not permitted to do, like require paperwork that is not required by law or regulation (this can be a violation of the Paperwork Reduction Act), or impose standards of conduct that are not required by law or regulation (this can be a violation of the Administrative Procedures Act). When this happens, the designee has no choice but to obey the instructions from the FAA-Advisor … even if they would be illegal if undertaken by the FAA’s employees.
Want to make sure that designees are not used to do things that FAA employees can’t do (by law)? The be sure to take the time to offer comments to the FAA Designee Management Policy that is now out for comment. The FAA has issued for public comment a draft change to the guidance document affecting designees. Although only parts are changed, it is a potential opportunity to comment on the entire document.
The original guidance is called “Order 8000.95, Designee Management Policy.” It was first issued in April of 2014.
This guidance document provides a wide variety of guidance on how to manage FAA designees. It has not and does not appear to cancel FAA Order 8100.8 (Designee Management Handbook), although some of the guidance appears to address some of the same issues as that guidance (failure to cancel 8100.8 might have been an oversight).
As a practical matter, designees (who are the people most directly affected by this guidance) will not be able to write comments that are critical to this guidance. This is because designees can be terminated for cause or without cause, at the discretion of the FAA. So the FAA can terminate a designee for exercising his or her First Amendment freedoms (as long as they come up with any other pretext for the action, including a termination ‘not for cause’). Designees are well aware of this and they regularly self-censor their comments because of the chilling effect that the FAA’s discretionary termination power has had. In some cases, designees have contacted me because they know that I will protect their anonymity.
The real-world issue us that designees rely on their designation from the FAA to ply their trade. If they are terminated (for-cause or not-for-cause) then they cannot simply be a designee for someone else. They need to choose a entirely different career path. So the process for reviewing designee termination is very important. And both the current policy and the draft policy are woefully inadequate, because they offer no standards for review, so the FAA employees are able to rubber stamp any termination decision on review. Honest review depends 100% on the personal integrity of the reviewing personnel – and there is no formal training for the employees who act as reviewers in that process (by comparison, state court judges typically attend judicial training).
The FAA’s failure to have effective standards actually undermines the FAA’s own interests. One example arises in the context of designee termination. The lack of effective standards means that individual FAA employees can cause the termination of a designee for any reason, including a reason that would have been considered to be illegal if it was used to terminate an employee, as long as the party who initiates the termination offers a pretextual reason. There is no formal inquiry into such pretext – it is taken at face value – and the VERY short time period for presenting a defense means that it is tough to be effective in assembling a defense: the full appeal including all supporting evidence must be submitted within 15 days – while the designee is given the charges, he or she has no opportunity to review the FAA’s underlying evidence. In comparison, the appeals panel has 45 days to consider the appeal and then another 15 days to notify the designee of their decision for a total of 60 days. We have seen evidence that FAA inspectors will use this period to gather more evidence to refute the defense and bolster the ‘prosecution’ so clearly the FAA is not bound to any sort of deadline for presenting its own case.
There is plenty that could be improved in the designee management process.
This is a great opportunity to help the FAA to better manage the designee community using effective processes that ensure fairness for everyone. MARPA members should strongly consider reviewing and commenting on this draft guidance.
Comments are dues to the FAA by January 7. Please send comments to MARPA, as well, so we can sure that our comments reflect your concerns.
|How to Comment:||Deliver comments by mail or hand to:
1625 K Street NW
Washington DC, 20006Email comments to: Susan.firstname.lastname@example.org
Email CommentsFax comments to:
(202) 223-4615, Attn: Susan Hill
My comment on the cancellation of FAA Order 8100.8 failed to take into account FAA Notice 8000.372. That Notice directs all AIR manufacturing personnel who oversee designees to stop using Order 8100.8 and being using 8000.95 on a schedule. The schedule reflects the implementation of the Designee Management System (DMS) in those offices.
Under that schedule, all MIDOs with designee management responsibilities should have transitioned to Order 8000.95 during the summer (of 2014). So Order 8000.95 will have supplanted 8100.8 for MIDOS (but not necessarily for ACOs and FSDOs). This means that DMIRs and DAR-Fs have transitioned. But DERs should still be under 8100.8 until they are formally transitioned (at which time they will fall under the instructions of 8000.95).
Special thanks to William Denihan for pointing this out!
The FAA is proposing changes to the Part 21 manufacturing rules. A number of these will impact PMA holders. It will be important for the PMA community to provide comments to this NPRM.
The proposed changes include:
With respect to the new permission for PMA holders to issue 8130-3 tags, the FAA confirms that the intent is to permit manufacturers to issue the 8130-3 tags, although the NPRM appears to be missing an explicit authority to issue such a release. Instead, the NPRM as drafted requires a procedure for managing the 8130-3 tags process; but subpart L continues to require application to the FAA for issue of an 8130-3 tag. This is something that will need to be changed if the FAA is to successfully implement this provision.
If the proposal becomes a regulation, the rules would include a requirement for supplier control and a parallel requirement for ensuring conformity of supplier products. This appears to suggest that supplier control must be supplemented with 100% conformity verification of incoming supply; but more importantly it would also mean that non-conforming supplier-provided-parts would represent a regulatory violation even when they are caught in the PMA holder’s incoming inspection! This seems to be inappropriate.
The proposed rule is scheduled to be issued in tomorrow’s Federal Register. An advance copy is available online today at https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-04330.pdf.
We expect the FAA to publish for new proposed helicopter operations regulations tomorrow (Friday). The proposed rules could reflect new opportunities for PMA manufacturers.
The proposed rules would require all helicopter air ambulance flights with medical personnel on board to be conducted under part 135 (proposed §§ 135.1, 135.601), thus increasing the population of Part 135 helicopter operations. The proposed rules would also require some new equipment rotorcraft operated under Part 135 (including those that have just been redefined as 135 operations by the new rule).
The new equipage rules under Part 135 would include:
These are operational rule requirements, so they do not apply to rotorcraft operated solely under Part 91 operations rules.
MARPA members who see problems or opportunities with the proposed rule (or who perceive areas where the FAA deserves appreciation for its efforts) should let MARPA know, so that the Association can file comments with the FAA that are consistent with the industry’s needs and desires.
In addition the proposed rule would impose new operational requirements for rotorcraft operated under Part 135, such as:
MARPA members who support the rotorcraft industry (especially the air ambulance community) may want to let their customers know about this significant rule change, as their customers may wish to comment on the open rulemaking proposal.
This could be your chance to affect the rewrite of an important engine certification rule! The FAA has asked the Aviation Rulemaking Advisory Committee (ARAC) to look into engine endurance testing pursuant to 14 C.F.R. 33.87.
An engine endurance test is an accelerated severity test intended to demonstrate a minimum level of engine operability and durability within the approved engine ratings and operating limitations. The test running conditions cover the declared engine rating and operating limitations, but are not intended to precisely simulate the expected in-service operation.
The FAA has found that applicants need to modify their engines in order to meet the testing requirements of section 33.87, but that these modified engines are no longer accurate representations of the type design. Thus, there is a worry that modern engine technology has progressed to the point where section 33.87 no longer meets its intended function.
Dorina Mihail of the FAA Engine and Propeller Directorate is looking for engine technical experts to serve on the working group examining this rule. The FAA must receive all requests by February 11, 2014, so if you are interested in having MARPA promote your application to the working group. then please contact us before then.
The PMA industry has an opportunity to affect the FAA reporting rules for manufacturers!
Design approval holders are required to report certain occurrences to the FAA under 14 C.F.R. 21.3. That rule requires reporting to the FAA of any failure, malfunction, or defect in any product or article that could lead to (or that results from) any occurrence on the FAA’s list of occurrences found in section 21.3(c).
The current rule was originally designed to provide the FAA with information that the FAA needs in order to be able to take appropriate mandatory safety actions, like issue Airworthiness Directives (see Reporting Requirements for Manufacturers; Failures, Malfunctions and Defects, 35 Fed. Reg. 3154 (February 18, 1969)). But the rule has been accused of being both overbroad (it requires reporting of occurrences that would never be used by the FAA in relation to mandatory action) and under-inclusive (it also fails to require reporting of unlisted occurrences – and some unlisted occurrences could be safety issues about which the FAA ought to be receiving reports).
The FAA’s Part 21 Aviation Rulemaking Committee (ARC) will be proposing sweeping changes to the FAAAA’s manufacturing rules, including changes that implement design organizations (comparable to the European DOA Part 21 subpart J regulations) as well as changes that would more clearly implement Safety Management Systems (SMS) requirements for manufacturers. Part of this process is expected to include changes to 14 C.F.R. 21.3 in order to correct some of the existing issues, better synchronize the data requirements with the new SMS obligations, and make the rule more responsive to the FAA’s evolving data needs.
The sub-team working on 21.3 kicked off their first meeting yesterday. The group highlighted the belief that the current 21.3 too often requires reporting of occurrences with low associated risk, and this can mask the higher risk occurrences in a way that undermines safety. They also discussed high risk occurrences that may not meet the 21.3 list criteria and therefore may not be reported to the FAA. As a consequence, the group discussed two different options – one was changing the list and the other was removing the list entirely and replacing it with a reporting criterion that would more accurately influence reporting to the sort of reports that are most useful to the FAA in pursuing its safety mission. The argument in favor of the latter option was that today’s aircraft design and safety management practices have evolved such that the 21.3 list of occurrences is no longer the most efficient way to describe reportable items.
MARPA is an active part of this group. If you have thoughts about 21.3, please share them with your trade association, so we can make sure your good ideas are considered! This can include examples of how you have implemented reporting in your facility, examples showing when 21.3(c) is too broad or when it is too narrow, and thoughts about the best way to improve the reporting regulation.
As many of you know, MARPA has been an active participant in the FAA’s efforts to develop both Design Organization and SMS regulations that would apply to the manufacturing community. This gives our members an exceptional opportunity to influence the regulations so that they will make sense and preserve safety.
The FAA is working on regulations that would require most design approval holders to be Design Organizations, which would be similar to EASA DOAs (under EASA subpart J in Europe). FAA Engineering Division Manager Dave Hempe will be at the MARPA Annual Conference to talk to companies about the costs and benefits of such a requirement.
The smallest companies (including many PMA companies) could be excepted from those design organization rules. But even those excepted companies will likely have to met some standard; the lower risk posed by excepted companies would mean that the standards applied to them could be lower.
This raises the question “how much of an organization SHOULD a small company be required to have as a minimum FAA standard?” We will be looking to the PMA community to help answer this question!
Soon, we will be soliciting volunteers for a limited engagement subcommittee that will be tasked with recommending those minimum standards. We anticipate that volunteers will be expected to commit to participate in between one and three one-hour-long telephone conferences – there will be no live meetings and no travel required. The purpose of those calls will be to solicit input about minimum standards that could apply to all design approval applicants and holders (even the smallest ones).
We really are going to need your help on this so please consider donating your time in order to register your opinion about what is reasonable for your business to do.
We will be publishing more details soon, but please contact us if you think you would like to participate!
MARPA continues to work diligently in support of the FAA’s Part 21 ARC. One of the ARC working groups is focused specifically on performing a cost benefit analysis of the ARCs proposals. We previously posted on the blog a request for our members’ input on what data we should be tracking in order to best estimate costs. Although we have received a handful of responses to date, we still need your feedback to ensure we have an accurate cost assessment as possible!
Our members have reported the following measurable data points
The data your company is able to measure may be similar, or may be different. In either case, we want to hear from you to provide a useful and usable data survey. Remember, at this time we are NOT collecting actual numbers, but merely attempting to determine what data we can reasonably expect to collect in the future to help with our cost benefit analysis. Future data will be collect anonymously to protect our members’ competitive interests while also guarding against costly regulation.
This information will help us to develop metrics for measuring industry costs of regulatory compliance. We will then have a baseline to which we will compare the costs and benefits of the ARC’s proposals. This is industry’s opportunity to provide detailed feedback regarding the costs of FAA regulations. The FAA will be joining us at the MARPA Conference in October, so it is important that we have investigated and reviewed this data prior to that time.
If you have not yet taken the opportunity to respond with what sort of cost data your company tracks, please take a few minutes and let us know. This will go a long way to helping us ensure the Part 21 ARC develops sound and cost effective proposals to deliver to the FAA. Email responses to MARPA Associate Counsel Ryan Aggergaard at email@example.com.
This conversation was a follow-up to the FAA publication of a technical amendment that would have required full engine testing for vibration compliance. The FAA representatives explained that they wanted to explore the reasons for MARPA’s concerns over the rule (the rule had been withdrawn based on MARPA’s objection).
They asked about our concerns with the rule. They asked about whether a change to the preamble would have been enough to salvage the rule. We answered that IF their intent was to apply the full engine test requirement to only TC applicants (as FAA employees had indicated in an August 27, 2012 phone conversation) and not to PMA/STC applicants then merely changing the preamble would be insufficient, because the problem lay in the (withdrawn) rule language itself. We pointed out that the (withdrawn) rule language would have appeared to have required full engine vibration testing. Component-level testing (which is currently permitted for PMA applicants) would have been available as a supplement to full engine testing (and not as an alternative, as currently permitted by AC 33-83-1).
We asked what the FAA’s goals were with respect to the rule, and explained that MARPA would be happy to work with the FAA to help them meet their safety goals in a way that does not undermine industry’s ability to obtain PMAs. They responded “We are not sure where we’re going.”
They asked whether the existence of AC 33.83-1 had any impact on MARPA’s concerns and I reminded them that a common rule of regulatory construction is that a rule change that causes a rule to conflict with guidance invalidates the conflicting guidance. So if the rule had not been withdrawn then we would have been unable to use AC 33.83-1 to the extent it permitted anything less than what the new rule required
They asked about the economic effect of their rule. I explained that in a static model (of the sort used by federal economists) that it would have had a tremendous effect because it would have made engine PMAs much more expensive to obtain. I noted that in a dynamic model, the likely real world effect could have been to stop engine PMA applications because it could become economically impractical for PMA applicants to perform full engine vibration testing in lieu of the methods made available by AC 33.83-1 (as opposed to using the reasonable methods currently permitted in the AC). Neither of these models appear to produce economic results that are favorable for America.
Later in the conversation I reiterated that MARPA would be happy to assist the FAA in crafting language if they could just tell us what their goals are in the rule change exercise. They explained that “We are not yet prepared to say what our goal is.“ They also explained that they felt the ex parte rules and standards precluded them from disclosing any information about their thoughts or purposes (the ex parte rules do permit the FAA to engage in pre-rulemaking ex parte contacts to obtain technical and economic information).
What does this mean for the PMA Community? It means that the FAA appears to be working on another change to the vibration rule of 14 C.F.R. 33.83. It means that they recognize that such changes are potentially controversial and thus they are collecting data to try to improve the next iteration of the rule. But it also means that the Engine Directorate is as-yet unable to elucidate a cogent rationale for why they would like to change the vibration rule. This is something we will be looking for in the coming months.
As many of you know, MARPA is working on the FAA’s Aviation Rulemaking Committee (ARC) that is rewriting the manufacturing rules to address Safety Management and Design Organization elements. One of the things that the FAA wants to track is the cost-benefit data, to ensure that the project will reflect a positive benefit for the industry (as well as for the FAA).
To this end, we are seeking data about what we should track to estimate costs. We would appreciate answers to the following questions (note that we are seeking information about categories of costs, and not yet seeking numbers for costs):
At this time, WE ARE NOT COLLECTING ANY NUMBERS!! We are trying to identify what are the right questions to ask. This information will be used to develop a certification cost survey for the membership, and THEN we will be in a position to ask for numbers. When we ask for numbers, we will do it in such a way that individual company data will be protected.
[so you should be planning on eventually getting us hard numbers in these general areas]
Please get us your answers ASAP. We will plan on asking for this sort of data again in the August MARPA Supplement but it would be useful to get the initial data by the end of July.
The FAA has asked to use our Conference as an opportunity to collect industry data, so we will be developing data models during the summer in order to support those efforts. We are hoping to develop metrics for measuring our industry’s costs between now and then, so that by the time of the MARPA Conference in October, we will have a robust model upon which to rely.
At the 30th International Aviation Safety Conference, the regulators of the world discussed the balance between harmonized (global) standards and regional flexibility (lack of harmonization that permits national flexibility).
FAA Aircraft Certification Director Dorenda Baker explained that the optimal regulatory structure balances the rigor applied during a certification exercise. The reason for this is that as rigor increases, cost of certification increases. She explained that as cost of certification increases, safety can decrease to the extent that certification costs have a chilliing effect on safety innovations.
One example of putting this theory into effect can be found in the way that FAA approves avionics software
FAA created a system that divided software into four tiered classes for certification purposes. Baker feels that there is a relation between the avionics that we’re permitted to be certified and the reduction of CFIT (controlled flight into terrain).
Baker explained that “Sometimes you’ve got to get out of the way, for safety.”
With this in mind, the FAA is working on ways to ensure that the airwortness standards reflect performance standards. A part of this effort is removing methods of compliance from the regulations, in order to ensure that the regulations do not limit innovation. Methods of compliance should more properly be published in guidance.