Several draft FAA Advisory Circulars are currently open for comment of which MARPA members should take note.
Today the FAA’s Engine and Propeller Directorate released draft AC 33.15-3 Parts Manufacturer Approval (PMA) Metallic Part Material Compliance Using Comparative Test and Analysis Method for Turbine Engines or Auxiliary Power Units. This AC is intended to provide guidance to assist PMA applicants in developing tests to demonstrate the equivalence of materials with that of the type design materials.
We will provide a more detailed analysis of this draft AC in the coming days, but want to encourage each of our members to review it and submit comments to the FAA addressing any potential problems you identify–or offering praise if you feel it is a useful document. MARPA will be offering its own comments, so if you do not wish to file on your own, please feel free to provide us with your thoughts and we will incorporate them into the association’s comments. These comments are due to the FAA by July 20.
Two other draft ACs are also open for comment and bear review. The first is AC 39-xx Alternative Methods of Compliance. This AC is intended to provide guidance to those applicants seeking approval of an AMOC. This guidance formerly appeared in FAA Order 8110.103A but has since been removed to a stand-alone AC. Comments are due May 30.
The other is AC 23.10 FAA Accepted Means of Compliance Process for 14 CFR Part 23. This AC provides guidance on how to submit applicant proposed means of compliance to the FAA for acceptance by the Administrator in accordance with proposed § 23.10 (which is one section of the current Part 23 proposed rule revision). Comments are due May 13.
Each of these proposed Advisory Circulars should be reviewed for potential effects on the PMA industry. MARPA will be undertaking its own reviews, but we encourage each of our members to do the same, and file such comments as they believe helpful. All draft materials and FAA contact information can be found at https://www.faa.gov/aircraft/draft_docs/ac/.
If you would like us to incorporate your comments, you should email them to VP of Government and Industry Affairs Ryan Aggergaard at firstname.lastname@example.org
The U.S. Bureau of Industry and Security has issued an order denying the export privileges of:
This is a temporary denial order that is only valid for 180 days, unless extended. Although published in today’s Federal register, the order is actually dated January 19, 2016. The Order prohibits the denied parties from engaging in export transactions, and it includes a prohibition against third parties exporting from the U.S. to any of these denied parties.
Absent a license that authorizes sales to these denied parties, sales of US-origin FAA-PMA parts to such denied parties may violate the temporary denial order.
MARPA members with a history of doing business with any of these parties should ensure that their future transactions remain consistent with U.S. law. While the Order remains effective, those who are approached by any of these denied parties should exercise caution in their dealings.
The customers will be there in Istanbul in twelve days – will you?
MARPA and the Association of European Airlines (AEA) will co-host a PMA meeting in Istanbul on May 25-26. By my count we have 29 customer-personnel attending the conference – these are air carriers and MROs that are interested in PMA solutions. You can see the current “early registration list” online to see who has already committed. And we are hoping to confirm a few more European carriers before the end of this week.
“29 customer representatives in an intimate setting like that? Unlimited access to air carrier and MRO purchasing representatives? I can’t think of a better networking opportunity for a PMA company that wants to sell into Europe”
Customer attendees will include (but not be limited to):
Why are they gathering? To learn more about PMA and to network with PMA companies that can provide them with solutions. Why have AEA and MARPA gone to the effort to bring these air carriers together? To help educate the world about PMA and to help our members make sales to air carriers in the region!
If you’ve been dying for an opportunity to have one-on-one time with air carriers and MROs that are eager to learn more about PMA, then this is the conference for you. If you aren’t yet registered for the conference, then you should be.
Looking for more opportunities like this one? Take a look at everything that MARPA is planning for the remainder of the year to help promote YOUR export sales.
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.email@example.com
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!
Have you ever been frustrated to learn that an AD went out that references a service bulletin, and (too late!) you later learned that the service bulletin made disparaging remarks or provided inappropriate directions about your company or your parts?
How do you prevent this situation? You need to get a copy of the service bulletin that is cross referenced by the AD, and review it before the AD rule becomes final. But sometimes no one will provide the service bulletin to you!
That just shouldn’t be the case. If an AD might indirectly affect you because of the cross referenced service bulletin, then you should be entitled to review the service bulletin before it becomes part of a regulation.
The U.S. government agrees!!
The U.S. Office of the Federal Register has published a new rule designed to make government rules more transparent. It accomplishes this by addressing incorporation-by-reference.
Incorporation-by-Reference (or IBR) is the term for regulations that make reference to some other document that is not published in the rule. Historically, incorporation-by-reference came about because it cost money to print the Federal Register, and wasting a lot of pages on a standard that could easily be obtained outside of the Federal Register. But today, most people access the regulations and the Federal Register on line, so there is not as much of a burden associated with publishing such documents. Incorporation-by-reference can be an issue for the public because when an incorporated document is merely technically available – but it is not really available – then this can make it difficult or impossible for an affected person to comply with the regulation (and can make it impossible for the affected person to even know that (s)he is subject to the regulation).
In short, unavailable-but-incorporated documents can reflect secret regulations that are impossible to comply with.
With this in mind, the Administrative Conference of the US began to study what could be done to update the rules to reflect modern technology. This ultimately led to the Office of the Federal Register looking into potential changes to the rules on incorporation-by-reference.
The aviation industry faces many challenges related to incorporation-by-reference. An issue that can be very important to MARPA’s members is the availability of referenced documents in Airworthiness Directives(ADs), like service bulletins. Service bulletin language can affect PMA parts, and can even disparage PMA parts in ways that are inappropriate.
Timely availability to the PMA community of these service bulletins can be a serious issue. It is typical for the FAA’s incorporation-by-reference statement to insist that the incorporated service bulletins be obtained either from the FAA office or from the OEM who published the document. In order to test this system, I emailed an FAA office and an OEM who were described as the sources of a service bulletin (the Federal Register listed the emails and listed this as an acceptable way to make contact). The FAA response was that I should go to the OEM. The OEM response was to ask me why I wanted the service bulletin. When I responded that the service bulletin was incorporated by reference in a proposed AD, and I wanted a copy of the service bulletin to determine whether the trade association needed to file comments on behalf of the membership, I received no further communication from the OEM. They just stopped responding to me.
MARPA filed comments on the Advance Notice for this proposal and offered a number of suggestions in 2012. MARPA also participated in face-to-face meetings with the government to discuss ways to improve the current system.
The result was a new rule that clarifies obligations related to regulations that incorporate standards by reference.
It is important that incorporated material be available in proposed rules so that the public can comment on the proposed rule with full knowledge fo the proposed rule’s impact. Under the new standards (1 C.F.R. 51.5(a)), the preamble to a proposed rule must :
When the agency is ready to publish a final rule with an IBR, the agency must do the following (1 C.F.R. 51.5(b)):
An important feature of the regulations is the requirement to discuss availability to “interested parties.” This is an expansion of the traditional language, which merely required availability to “the class of persons affected by the publication.” Interested persons should include persons who are indirectly affected (like those whose PMA parts MIGHT be affected in the case of an airworthiness directive) in addition to class of persons directly affected by the publication (which is generally operators).
The regulations continue to explain that IBR is limited to the edition that is incorporated. So if a subsequent revision of a service bulletin comes out, only the version that was approved by the Office of the Federal Register is the version that is IBRed (and not subsequent versions). 1 C.F.R. 51.1(f).
One sad omission was that the new rule does not define “reasonably available.” The Office of Federal Register was worried that a definition might be inappropriate, so they were hesitant to offer a definition, and instead they have left it to a case-by-case analysis as defined by each agency. But it seems certain that if you make a reasonable effort to obtain an IBRed service bulletin using the mechanism in the Federal Register, and you are denied, then you may have a claim that the service bulletin was not reasonably available.
While we did not get every change we requested, this nonetheless represents a good start on the process of providing better transparency in the situations of incorporation-by-reference.
In January, we wrote in this space about two new FAA Policy Statement proposals aimed at increasing coordination between FAA offices in the cases of certain engine PMA and propeller PMA applications. MARPA is always on the lookout for those potential regulations and policies–whether large or small–that could effect our members. In an effort to best support the industry, MARPA solicits feedback from members and files comments addressing the concerns of the PMA community with the FAA. MARPA also works to support the FAA in order to provide industry’s perspective and needs in order to help develop the best rules, policy, and guidance possible.
Last week we filed comments on draft policy statements PS-ANE-33.3-05 and PS-ANE-35.15-02. These two statements were substantially similar in content, and therefore raised similar concerns. The policy statements are intended to create a uniform policy describing the engine and propeller PMA projects for which an ACO is required to use the national certification project notification (CPN) database to alert the Certification Management ACO (CMACO) and Engine and Propeller Directorate (EPD) about the project. The purpose is to enable the CMACO and EPD to provide relevant input when the PMA application is for a project the failure of which may result in a loss of thrust or power.
MARPA noted several possible issues with the proposed Policy Statements. First, our comments noted that the policy as proposed could run the risk of burdening PMA applicants by delaying response time, as each FAA office took the opportunity to review the project. MARPA also noted the risk that differences of opinion between offices could be hashed out using an individual PMA application as the mechanism. This could also result in undue burden to the applicant. Finally, MARPA noted that inquiries by FAA offices about certain PMA projects could inadvertently alert TC holders of possible competition in a particular part market, and give that TC holder the opportunity to lock up the market before the PMA package is ever approved; a clear unfair competitive advantage.
Finally, MARPA noted that a certain provision uniquely included in PS-ANE-33.3-05 (the engine-PMA Policy Statement) was needlessly critical of PMAs and potentially harmful to the PMA industry. The sentence in question reads “[f]ailure of some of these engine PMA parts has resulted in unsafe conditions and the issuance of airworthiness directives.” MARPA explained that this sentence was inappropriate for two reasons. First, it incorrectly implies that PMA parts are abnormally unsafe and that TC products do not have a history of resulting in ADs. Second, the sentence in no way advances the purpose of the Policy Statement, which is to establish uniform standards for use of the CPN database. For these reasons, MARPA recommended the deletion of the sentence.
MARPA will continue to work for its members to advise and cooperate with the FAA in crafting fair and effective policy. Members comments on these issues are always welcome.
You can read MARPA’s comments in their entirety on the MARPA website under the Government Affairs tab at http://www.pmaparts.org/government/.
Last month, MARPA joined with a broad coalition of U.S. industry associations and representatives who together signed on to a letter to the U.S. House of Representatives in support of current legislative efforts to enact reform of the regulatory process. The multi-industry letter emphasized the importance of creating a level playing field for citizens regulated by federal agencies, holding agencies accountable to the public, and improving the transparency of agency actions.
Transparency and participation between federal agencies and the citizens they regulate is an important part of the regulatory process. Rulemaking processes that are opaque or secret can result in regulations that are not only unduly burdensome, but which also may ignore important advances in industry practices and techniques, due to an absence of industry participation and information. Such regulations also undermine industry confidence in the regulatory agencies and can lead to unjust or unreasonable penalties as a result poorly drafted rules or rules that are unworkable in practice.
The legislation before the House of Representatives, H.R. 2804 Achieving Less Excess in Regulation and Requiring Transparency (ALERRT) Act, draws upon concepts described in a number of other bills. Several key elements are included in the ALERRT Act:
By enacting the above mentioned reforms, Congress can help to create a level playing field for its citizens, better hold agencies accountable to the public, and improve the transparency of agency actions. Improved access and confidence in the regulatory process should result in fewer unduly burdensome or unworkable regulations and encourage increased stakeholder participation in the rulemaking process.
Many of MARPA’s PMA members also hold repair station certificates, so the entire MARPA community will be interested to know that the decade-long saga that is the Repair Station Security rule is finally coming to a resolution. The rule is scheduled to be published in the Federal Register on Monday.
The repair station security rules are authorized under the repair station security statute (49 U.S.C. 44924). That statute barred the FAA from issuing any new foreign repair station certificates until TSA security audits were completed for existing stations. Now that the rules are out, once TSA has audited all existing repair stations, the FAA may be able to once again start issuing foreign repair station certificates. Of course, this must be balanced against the comments of FAA Deputy Associate Administrator John Hickey who suggested last Spring that the FAA may not have the resources to process the applications when TSA issues its rules.
Throughout the foreign certificate hiatus, we’ve advised MARPA members who are interested in pursuing new foreign repair station certificates to file applications with the FAA in order to secure their place in the queue when the restrictions are lifted. In private meetings with FAA officials, we’ve been told that the FAA does not intend to strictly follow the first-in-first-out approach to these applications, but companies who desire new foreign repair station certificates ought to start working immediately in order to be able to pursue and support those applications with the FAA.
The final rule contains the following requirements:
The new rule can be found online at http://origin.library.constantcontact.com/download/get/file/1102873717486-941/TSA+Security+Rule+Published.pdf.
Today, EASA issued an updated agenda for the 2013 EASA / FAA International Aviation Safety Conference. The Conference is the annual meeting among EASA, FAA, TCCA and other regulators to discuss new paradigms in regulatory oversight. This meeting directly impacts the aviation industry, which is the subject of this regulatory oversight!
The updated agenda provides better guidance on what to expect from the 2013 meeting.
Sessions that will be interesting to member of the PMA manufacturing community will include:
MARPA will be there and will be reporting on the new directions proposed by the regulators.
We have written recently on this blog about the important SMS/Part 21 Aviation Rulemaking Committee (ARC) and corresponding Working Groups in which representatives of MARPA are now participating. The result of this ARC promises to affect each and every manufacturer of PMA in some way or another. MARPA will therefore be there every step of the way, working to ensure that the interests of PMA community are protected. But in order to ensure that we guard our members’ interests, we will need your assistance and feedback! We are therefore asking MARPA members to tracks and share with us the cost of regulatory compliance.
The Regulatory Flexibility Act requires agencies to attempt to fit the burdens of a proposed regulation to the scale of businesses. This recognizes the fact that the same regulatory burden that may simply be the cost of doing business to a large multinational corporation may be crippling to a small company. Recognizing the extreme importance of scalability in the promulgation of the new Part 21, one of the four Working Groups is dedicated solely to undertaking a Cost-Benefit Analysis of the proposed regulatory changes.
This is where MARPA member feedback will be of extreme importance. The Cost-Benefit Analysis Working Group needs data to better understand what the current cost of compliance to small business actually is. This will function as a baseline from which to determine the benefits and costs of the proposals generated by the other three Working Groups. As the Working Groups craft the new regulations they will turn to industry to obtain data demonstrating the effects of the proposed changes.
It is vital that MARPA members participate in providing data to the Working Groups as the new proposals are developed and those assumptions tested against hard data. Hidden costs of compliance with regulations, under-estimations of costs, and over-estimations of benefits have the potential to result in an overly burdensome regulation. The participation of MARPA members in providing data to the ARC Working Groups will go a long way toward shaping an effective regulation while minimizing the burden on small businesses.
Input from members helps MARPA to more effectively advocate for policy changes that benefit the PMA community. Responses to requests for information such as this—or for data regarding the Streamlined PMA Process—helps MARPA to focus its resources to optimize benefit to the membership.
MARPA looks forward to the participation of its members in shaping the future of Part 21. Although the Working Groups have not yet begun to approach industry with requests for data, MARPA would like to get started early. If your company tracks the cost of regulatory compliance, whether in dollars, personnel, man-hours, paperwork, or any other metric, we want to hear from you. Your confidentiality is important to us, so MARPA will only report data in the aggregate; no individual data will be released and no company names will be revealed. You can send this data to MARPA Associate Counsel Ryan Aggergaard at firstname.lastname@example.org. Please also send Ryan an email if you have any questions or would like to start tracking compliance costs.