Brexit is Coming – How Will It Affect Aircraft Parts?

Brexit – the withdrawal of the United Kingdom from the European Union – will occur at 11 pm on Friday, March 29, 2019 (known as the withdrawal date).  In the past few weeks, we’ve met with representatives from the UK CAA, EASA and the FAA.  We’ve had a chance to talk about post-Brexit expectations.  It is clear that there are still a lot of unknowns.

One of the most significant unknowns revolves around the uncertainty in the future of UK-EU relations.  The UK CAA feels that there are generally two possible options.

The Two Options for Brexit

Option one is a Brexit that is reflected by an agreement between the United Kingdom and the EU. The EU and the UK negotiators have a draft of such an agreement, but early statements suggest that it may face some difficulty being ratified by the UK Parliament.

If there is a broad agreement between the two parties before the withdrawal date, then there is a reasonable chance that EU will permit UK CAA to participate in EASA.  EASA already has several non-EU participants that participate in EASA – like Norway and Switzerland – and the EU could permit the United Kingdom to join EASA as a non-EU member state.  In such a case, UK could continue to issue certificates recognized by EASA and certificate holders could continue to issue the EASA Form 1.  This option could make things simple, but as each day passes without a ratified high-level UK-EU agreement, the likelihood of this happening diminishes.

In addition, UK CAA has suggested that EASA may be unable to negotiate with UK CAA at any level under after the withdrawal date (because UK remains a part of the EU until then); so even if the plan is for UK CAA to participate in EASA, there may be a gap between the withdrawal date and UK CAA’s subsequent participation in EASA.

Option two arises if there is no deal between the United Kingdom and the European Union.  In such a case, UK CAA believes that EASA will not be permitted to negotiate with UK CAA on a formal basis. UK CAA would have to rebuild its own independent regulatory framework; it is already hiring additional qualified staff to be prepared to do this.

Under option two, and even under some versions of option one, there may be no aviation safety agreement between UK and EU.  If there is no agreement, then the European Commission published a Notice to Stakeholders detailing the consequences of the UK’s withdrawal from the European Union’s aviation safety rules.  The Notice to Stakeholders paints a bleak picture of the near future between the UK CAA and EASA.

European Union Treatment of Parts Produced or Maintain in the UK

The European Notice to Stakeholders explains that when the UK leaves the European Union (EU), then from an EU perspective, this action will (1) invalidate all certificates issued by the UK CAA, and (2) invalidate all certificates issued by the UK CAA certificate holders.  Certificates will be invalid as of the withdrawal date, which is currently set for 11pm (UK time) on March 29, 2019.

The Notice explains that “[t]he products, parts and appliances concerned will no longer be considered as certified in accordance with Article 5 of the Basic Regulation.”  Article 5 of the Basic Regulation provides the legal foundation for the issue of an EASA Form 1 for a part or appliance.

This means that UK production approvals will become invalid, as far as the EU is concerned.  But this does not just apply to parts made after March 29.  It also applies to parts made before the withdrawal date.

Under European regulations, acceptable parts are required to bear appropriate documentation (such as EASA Form 1).  EASA Forms 1 issued before the withdrawal date under UK CAA authority become invalid as of the withdrawal date.  This means that parts in your inventory today – parts that are perfectly acceptable for installation on European-registered aircraft, today – will no longer be acceptable, after withdrawal, under EASA documentation rules because the UK CAA certificates will become invalid after the withdrawal.

After March 29, one may not install a part that is documented solely under a UK CAA EASA Form 1 into an EU-registered aircraft.  It would appear likely that this also would apply to aircraft registered in non-EU nations (like Norway) that have agreed to follow EASA regulations.  This would include:

  • New parts with UK CAA EASA Form 1
  • Maintained parts released to service on a UK CAA EASA Form 1

In a practical sense, if you have an EASA Form 1 for a new part, and it was issued in the UK, then the EU will no longer recognize it as a valid document after Brexit.  This means that parts in your inventory that bear EASA Form 1 may have to be segregated and identified as “UK” and “EU,” in order to ensure that if they are still in inventory after Brexit, then they can be directed to customers who are legally able to use those parts.

How does a distributor tell if its EASA Form 1 certificates are affected?  Check block 1 of the form.  This is the block with the name of the regulatory authority.  If it says “UK CAA” in block one, then the EU will no longer recognize it as a valid tag after the withdrawal date (unless there is an agreement that changes the circumstances).  As an example, here is a link to a form issued under the legal authority granted by France’s DGAC; and here is a link to an overhaul tag issued under the legal authority granted by the UK CAA.

Some people might wonder about dual-certificated parts from the UK.  About 200 repair station in the UK have FAA Part 145 certifications, and they historically have been released to service, following maintenance, on a UK CAA EASA Form 1 that also indicates compliance with FAA Part 145 regulations.  The EU has a bilateral agreement with the United States … does this permit acceptance of the work because it was performed under US FAA standards (too)?  The answer is “no.”  The EU only accepts maintenance from the United States’ system when it also approved under the EASA 145 standards.  Because UK’s EASA 145 certificates (and all other certificates issued by the repair stations) will become invalid upon withdrawal, a dual US-UK approval will not be acceptable for introduction into the EASA system.

Possible UK Solutions

EASA has a solution.  But it may be a costly and unwieldy solution.

EASA has proposed to issue EASA certificates to businesses in the UK as “third-country.”  In fact, it started accepting applications on October 2.  “Third country” treatment means that the UK certificate holders get treated like any-old foreigners.  They need to pay as if they were foreign applicants.  They need to pay for all of the EASA-time spent in approval and oversight.

By way of comparison, the EU has a working arrangement agreement with Uzbekistan.  It is currently scheduled to have no agreement with the UK.  So the Uzbekistan CAA is scheduled to have a closer relationship with EASA than the UK CAA will have.  This doesn’t mean that the years of trust between EASA and UK CAA disappear.  In the interim between now and March 29 (while UK CAA is still a member of EASA), EASA will be relying on UK CAA to support audits of UK aviation businesses that apply for EASA certificates as third country applicants.

EASA issues a number of foreign certificates, but the two most important for aircraft parts distribution are likely to be production organization approvals and maintenance organization approvals.  Both are potentially available to UK businesses.  An EASA third-country production organization approval would permit a UK manufacturer to produce parts and issue an acceptable EASA Form 1 even after the withdrawal date.  An EASA maintenance organization approval would permit a UK repair station to maintain articles and issue an acceptable EASA Form 1 even after the withdrawal date.

The timing of third-country certificates appears to be uncertain.  It would make the most sense for EASA to issue the certificate on or before March 29 in order to allow seamless operations in support of aviation safety.  The earlier that   EASA is able to issue the certificate before March 29. the better for industry planning (including safety contingency planning).  But it is also possible that the European Union will not permit EASA to issue third-country certificates to businesses in the UK until after the withdrawal date (a lergal justification advanced for this delay is that UK is not a third country until the withdrawal date).

When a distributor looks at an EASA Form 1 certificate issued by a UK-based entity, if block 1 of the form says “EASA” then this is an indication that the relevant certificate was issued by EASA and not by the UK CAA.  If it says “EASA” in block one of the Form 1, then the EU should recognize it as a valid (“third country”) tag after the withdrawal date.

What happens to parts that were maintained or produced in the UK before withdrawal date, by a company that obtains a replacement EASA third country certification?  This would appear to establish a continuity of EASA approval; but the actual legal treatment of the certification is currently unknown.  It is equally possible that EASA could invalidate EVERYTHING with UK CAA in block one (for ease of determination) or it could decide to accept parts from UK certificate holders who subsequently obtain comparable EASA foreign approvals (causing potential complication in cases where there was a hiatus between the withdrawal date and the date on which the EASA foreign approval was issued).

US Acceptance of UK Maintenance and Production

The United States and the United Kingdom have pledged to work things out.  It is likely that there will be some difficulties at first (there always are), but both authorities seem optimistic about their desire to find a way to support safety and keep aviation flying.  They are actively negotiating a new bilateral agreement, with the understanding that they will be ready to use it if the UK CAA is unable to rely on EASA as their agent (and if the EU permits UK CAA to participate in EASA, then some of the following details will likely change).

An important element of the US-UK negotiations is the plan concerning UK-based repair stations.  As previously mentioned, there are about 200 repair stations in the UK that bear FAA credentials as well.  The plan appears to be

  1. Identify the repair stations whose FAA credentials will expire in the first six months after the withdrawal date;
  2. Renew the FAA credentials of those soon-expiring repair stations early, before the withdrawal date, so they can be renewed before March 29 under the EASA provisions;
  3. This early renewal of expiring repair station certificates in the UK allows the FAA to have a cushion of time to work-out the operating procedures with UK CAA without any emergencies forcing rash decisions;
  4. After the withdrawal date, FAA repair stations in the UK will be permitted to issue dual release 8130-3 tags under FAA and UK CAA authority.

Yes, you read that last bit correctly.  Repair stations in the UK would be permitted to issue 8130-3 tags as approval for return to service documents.  This unusual move is permitted, because FAA removed the geographic limitations on 8130-3 tags about a decade ago.  The UK repair stations in question hold FAA Part 145 certificates and are permitted to approve for return to service in accordance with 14 C.F.R. 43.9.  UK CAA is in favor of this solution because the 8130-3 tag is well-recognized internationally.

Other than these details, it is likely that much of the UK-US bilateral will resemble the US-EASA bilateral in order to minimize the differences and mitigate the change management issues associated with Brexit.

Conclusion

It is possible that the EU and the UK will enter into an agreement that permits UK CAA to remain a part of EASA.  It is also possible that Brexit could be reversed.  But, absent some other agreement, the EU will no longer accept UK-based EASA Form 1 for new parts, even if the Form was issued while the UK was still part of the EU, after the withdrawal date.

Distributors need to be prepared by:

  1. Assessing their inventory for susceptibility to Brexit issues based on UK CAA production and/or maintenance, and potentially segregating inventory in a way that eases identification;
    • Segregation could be physical or virtual, e.g. inventory could be managed through software;
    • Remember that we might not know who is willing to accept EASA Form 1 from the UK CAA until very close to the withdrawal date;
  2. Communicating with customers to understand their post-Brexit expectations;
  3. Establishing procedures for proper handling of UK CAA-tagged articles to ensure that they do not go to customers who cannot accept such articles;
  4. Training their personnel on how Brexit impacts the business and the customers;
  5. Communicating with UK-based partners to assess how they plan to deal with the changes.  For example, will your UK-based repair stations apply for EASA 145 under the third-country provisions?  Will your UK-based manufacturers apply for EASA POA under the third-country provisions?

Bear in mind that we’ve dealt here only with the airworthiness acceptance issues in this article.  Commercial relationships will be further complicated by myriad other issues, ranging from import tariffs to continued operations of aircraft.

This is a developing issue.  ASA will be taking steps to keep members informed, and ASA hopes to host discussions about the impact of Brexit in the near future.

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Holy Grail: International Mutual Maintenance Acceptance

Today, distributors who obtain overhaul services for their rotable aircraft p[arts are well-aware of the value of the tag that accompanies the part.  Depending on the company’s business model, a distributor seeking overhaul services may ask for more than one certification on the Approval for Return To Service (ARTS) documentation.  For example, a common certification is a dual US-EU certification made on either an EASA Form 1 or an FAA Form 8130-3.  This allows the part to ultimately be installed in either a US-registered aircraft of an aircraft registered in one of the EU member nations.  For a distributor that does not yet know which customer will purchase the overhauled component, having multiple certifications approving the component overhaul expands the potential customer pool that might be able to purchase that component.

But as the number of countries potentially extending jurisdiction over maintenance grows, the number of certifications that one must consider becomes unwieldy.  This can be maddening for a distributor that enjoys a global business model.

The large number of jurisdictions that could exert jurisdiction over maintenance work has resulted in some repair stations experiencing commercial pressure to obtain multiple certificates, and to be prepared to sign-off on maintenance under the rules of multiple different jurisdictions.  One friend of mine has admitted that he is managing over 130 certificates in his maintenance facilities.

Typically, the way that the maintenance is performed doesn’t change from one jurisdiction to the next; what changes are the ancillary matters, like how the maintenance is documented, how employee training is documented, what matters must be communicated to the government that issued the certificate, etc.  Because the way that the maintenance is performed really doesn’t change from one jurisdiction to the next, if one jurisdiction can accept that the neighboring jurisdiction’s government oversight yields the same results as its neighbor, then there may be some room for the governments to extend to one another a mutual recognition of the maintenance performed in the other.

Many people will be familiar with existing examples of this sort of mutual recognition.  One of the longest-standing such relationships exists between the United States and Canada.  Under existing United States laws, maintenance performed by a Transport Canada Authorized Maintenance Organization (AMO) is accepted in the United States as if it had been performed by an FAA-certificated repair station.  See 14 C.F.R. 43.17.  The regulations also recognize certain work signed-off under an Aviation Maintenance Engineer (AME) license from Canada.  In each case, the Canadian does not need an FAA certificate – the US accepts the work done by the Canadian certificate holder because of the trust between the FAA and Transport Canada (trust that is verified and renewed through collaboration and mutual oversight at the government-level).  Canada’s regulations provide for a similar recognition of maintenance performd in the US by FAA certificate-holders.

Recently, the quadrilateral group of airworthiness authorities met in Brazil to discuss a future paradigm in which mutual recognition of maintenance might be possible.  The quadrilateral group is made up of:

  • Brazil (ANAC),
  • Canada (TCCA),
  • European Union (EASA), and
  • United States (FAA).

The essence of such mutual recognition of maintenance is close and careful coordination that allows the authorities to each conclude that the others are performing oversight which yields substantially the same results – that is, a finding that a repair station subject to FAA oversight will yield the same safety results as a repair station subject to EASA oversight.

During the Brazil meeting, industry representatives and the authorities discussed the implementation mechanisms for such a paradigm shift.  Industry would like to see the authorities adopt a multilateral focus.  As part of this, they would like to see the four authorities consider a multilateral agreement in which the four authorities agree to mutual recognition and common standards for maintenance among themselves.

The Multilateral Approach

One reason for this is multilateral approach is because variances in the way that maintenance is accepted could cause problems.  For example, imagine a scenario where where maintenance on a subcomponent X is performed in jurisdiction one.  The maintained subcomponent X is then exported to jurisdiction two, which has an agreement to accept the maintenance performed under the maintenance authority of jurisdiction one. A repair station located in jurisdiction two accepts the maintained subcomponent X and introduces it into component Y, during the course of an overhaul of component Y.  This is permitted under a mutual recognition agreement between jurisdiction one and jurisdiction two.  The problem arises when the component Y is then exported to jurisdiction three.  Under a maintenance mutual recognition agreement between jurisdiction two and three, the repair station in jurisdiction three can accept the work performed in jurisdiction two.  But if there is not yet a bilateral agreement between jurisdictions one and three, then the subcomponent overhaul work on subcomponent X may not be acceptable to jurisdiction three.

But imagine that there is also a bilateral maintenance mutual recognition agreement between jurisdiction two and jurisdiction three.  This still might not solve the problem; because if the documentation requirements differ or if small details differ, then the maintenance documentation/acceptance requirements of jurisdiction two may not be adequate for jurisdiction three.  In such a case, maintenance that would have been acceptable in jurisdiction three if it had come directly from jurisdiction one, becomes unacceptable merely because it went first to jurisdiction two under the “wrong” paperwork.

This causes a problem in smoothly accepting the subcomponent and component work in jurisdiction three.  This problem is less likely to arise if all four of the quadrilateral jurisdictions agree to the same standards for accepting maintenance in a multilateral agreement, instead of a series of six bilateral agreements.

The Bilateral Approach

The authorities on the other hand, have made it clear that they prefer to retain the multilateral coordination, but to act through bilateral agreements.  This means a total of six agreements among the four authorities:

 

Brazil (ANAC) Canada (TCCA)
| \ / |
| X |
| / \ |
European Union (EASA) United States (FAA)

 

One reason for the preference for the bilateral agreement approach is that this is the approach that has historically been used in aviation.

The authorities all agree that there is too much redundancy in maintenance oversight.  They are committed to making strides to reduce unnecessary reduncancy.  But today, they typically approach issues through bilateral relations, so they are not yet comfortable with taking a multilateral-agreement approach to maintenance acceptance.

This is not a task that will happen quickly.  The trust-building among authorities to permit reliance on one-another, alone, is a lengthy process.  But industry proposed a number of ways to faciliate progress, such as using a risk-based approach to allow staged maintenance acceptance.  Under such a scenario, lower-risk maintenance, like non-critical component maintenance, could be accepted first, and acceptance of maintenance work that incorporates a higher level of risk tolerance could be shared among the authorities at a later date, when the authorities become comfortable with sharing maintenance recognition of less-risk-sensitive maintenance.

Another idea that was floated as a model in which third parties could assess compliance to an international standard (a standard encompassing international maintenance norms).  A repair station that was certificated by its home government AND accredited to a third party standard based on international norms could be eligible to issue an internationally-recognized approval for return to service.  AC 00-56B and AS9100 are both examples of accreditation programs that can help to serve as effective models for the government bodies to consider.

The Continuing Efforts

These concepts are being developed by the quadrilateral group in partnership with industry representatives.  They recognize that with finite regulatory resources, the elimination of redundant oversight means more authority resources can be focused on maintaining and improving safety.

At the same time that the quadrilateral group is working with industry on this project, the International Civil Aviation Organization (ICAO) is also investigating an international model for mutual recognition of maintenance.  If the ICAO effort is successful, then it could lead to international standards and recommended practices (SARPs) that might make it easier for governments to engage in mutual recognition of maintenance activities.

ASA will continue to work with the regulatory authorities to facilitate their trust-building exercises, to support their efforts to eliminate unnecessary redundancy, and to eliminate paperwork and administrative impediments that actually undermine safety by diverting focus away from the true aviation safety concerns.

International Court Requires U.S. to Sell Aircraft Parts to Iran

The International Court of Justice (ICJ) has ruled that the United States must remove all sanctions that would prohibit the export of aircraft parts to Iran.  The ruling also directs the United States to “ensure that licences and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction in so far as they relate to the goods and services.”

The Iranian Complaint in this matter was bought on or about July 16.

The Decision was issued on October 3.  It is a preliminary ruling in the case.  The court describes it as a “provisional measure[] responding to humanitarian needs [that] would not cause irreparable prejudice to any rights invoked by the United States.”  This is analogous to preliminary injunctions issued by U.S. courts (including a finding of irreparable harm, likelihood of success on the merits, and a weighing of the equities).

In response, the United States announced that it would withdraw from the Treaty of Amity that serves as the legal basis for the Iranian claim.  Article XXI of that agreement explicitly granted jurisdiction over US-Iranian disputes to the ICJ.

What effect will this ICJ ruling have?  In the United States, the Administration has already been critical of the decision, and has announced plans to withdraw from treaties that serve as the legal basis for elements of the court’s jurisdiction over the matter.  This is a strong signal that the US intends to ignore the ICJ ruling.  For US exporters, this is likely to mean that US law will continue to apply sanctions prohibiting export of aircraft parts to Iran.  But there is a stronger likelihood that the United States may stand alone in these sanctions, and other nations will continue to follow the Joint Comprehensive Plan of Action (JCPOA) that permitted nations to begin exporting certain aircraft parts to Iran.  US exporters will have to be especially vigilant about compliance in international transactions, to ensure that they are not inadvertently made parties to exports with a forbidden final destination.

For now, US exporters should continue to forbear from exporting aircraft parts to Iran unless the exporter has a valid export license covering the transaction, from the United States government.

New FAA Safety Guidance on Anti-Friction Bearings

The FAA has issued a Safety Alert For Operators (SAFO) warning about anti-friction bearings that were the subject of “improper overhaul and repair.”

The FAA SAFO states:

“The FAA investigation revealed that AeroBearings LLC conducted work on aeronautical anti-friction bearings used in aircraft engines, APUs, rotorcraft drive systems, and accessory applications without possessing the necessary approved data. As a result, AeroBearings LCC could not determine whether the bearings met the original equipment manufacturer’s (OEM) design specifications. The work accomplished is not compliant with Title 14 of the Code of Federal Regulations (14 CFR) Part 43. In March 2018, the FAA revoked AeroBearings LLC’s Air Agency Certificate No. 8AZR921B.”

The FAA recommends that distributors should:

“1. Inspect records and inventory. Inspect aircraft records, engine records, APU records, accessory records, FAA Form 8130-3 airworthiness approval tags, and aircraft part inventories for any bearings approved for return to service by AeroBearings LLC;
2. Quarantine and inspect bearings not installed. Any bearing found to be overhauled, repaired, or inspected by AeroBearings LLC that is not installed should be quarantined until the suspect bearing undergoes a recertification inspection to determine airworthiness prior to installation. The recertification inspection should follow the approved data, from the OEM or another, to determine airworthiness of a bearing; and
3. Inspect bearings installed. For bearings currently installed, we recommend owners/operators have the suspect bearings inspected at the next piece parts exposure. Owners/operators should also closely monitor the suspect bearings’ health using the OEM’s recommendations or other approved maintenance program methods.”

Please review the full SAFO if you think that your inventory might be impacted by the FAA’s instructions.

The FAA also revoked AeroBearing’s repair station certificate.  In a May 11 decision, the NTSB affirmed the FAA’s emergency revocation of the repair certificate.

Incident-Accident Parts

An ASA member wrote in to ask about incidents and accidents occasioned by turbulence.  The member found it odd that turbulence (an every-day industry occurrence) would yield an incident or accident report.  The query identifies one of the problems with our industry’s reliance on the accident-incident determination as the basis for identifying whether there may be damage to an aircraft part that affects its airworthiness.

FACTS

The fact pattern involves an aircraft that was flown in a non-US country, by that country’s flag operator.

The member obtained a “non-accident / incident” statement from an operator indicating that there were two occurrences in the history of the aircraft.  One occurrence was an incident and one was an accident and they were almost eight years apart.  The statement specifies that both occurrences were classified by the government (as incident and accident, respectively) because of serious injuries to passengers and/or crew.  The statement also specifies that each serious injury arose in the context of severe turbulence.

The operator’s “non-accident / incident” statement specifies that it is based on ICAO Annex 13.

The concern raised by the ASA member was whether turbulence represents a reportable incident.  Focusing on the turbulence, though, is focusing on the wrong element.

RULES AND STANDARDS

Our industry uses terms that are defined in the ICAO Standards and Recommended Practices (SARPs).  The terms that are relevant to our inquiry today are found in Annex 13, which is the annex for Aircraft Accident and Incident Investigation.

  • Under ICAO Annex 13, the term “accident” includes an occurrence involving a death or serious injury to a person on the aircraft.  Serious injuries (generating an “accident” label) can include fractures and lacerations.  So is a passenger suffers a broken arm as a consequence of turbulence, then the broken arm is reported as an accident (the turbulence in this case would merely be the environment in which the accident arose).
  • Under ICAO definitions, a “serious incident” is any circumstance in which “there was a high probability of an accident.”  ICAO Annex 13 clarifies that incapacitation of a flight crew member during flight is an example of a serious incident under the ICAO standards.  So if the turbulence in our example incapacitated a flight crew member during flight, then it would reflect a serious incident under the ICAO standards.
  • An incident (not a serious one) is any “occurrence, other than an accident, associated with the operation of an aircraft which affects or could affect the safety of operation.”  This is a catch-all term for anything that falls below the threshold of an accident, but might nonetheless be interesting to an accident investigation body.

Note that these terms tend to have very similar (but not always identical) meanings enshrined in national law, because the national laws are often based on the ICAO standards.  In the US, the NTSB regulations have very similar language in their definitions.

You can see from these definitions that it is quite easy to have an incident, a serious incident, or even an accident, that has absolutely no effect on the integrity of the aircraft parts.

It is important to remember that these terms are defined in the context of investigations.  They help define when a state has authority to investigate an occurrence, and when a state has an obligation to investigate an occurrence.  The purpose of this is to foster a uniform process of investigation that will allow the world to learn from accidents and incidents, and to better prevent them in the future.  They are not defined in terms of the occurrence’s likely effects on aircraft parts, and they were never originally intended to be used for the ‘accident-incident statement’ purposes that our industry has applied to them.  So it is only natural that these terms would fail to be 100% useful in some circumstances when we are using them for something other than their intended purpose.

ANALYSIS

The member asked whether instances of turbulence could be cause for a shop to treat these units as incident-related or accident-related.  The short answer is “no, turbulence alone is typically not an incident, nor an accident” but in this fact pattern it was not the turbulence that was the basis for the incident and accident labels … it was the fact that passengers and flight crew were injured during the turbulence.

As a threshold matter, it is important to remember why we identify units as incident-or-accident related.  The reason is because where an incident or accident may have caused damage to a part, we want a repair facility to assess whether such damage exists – usually through an appropriate form of hidden damage inspection.  Microscopic cracks/fissures can propagate in to larger ones, so hidden damage assessment is intended to identify potential safety problems before they become actual safety problems.

There are two ways to analyze this situation – a legal answer and a practical answer.

Legally, a repair station has an obligation to develop a procedure for “inspecting all articles that have been involved in an accident for hidden damage before maintenance, preventive maintenance, or alteration is performed.” 14 C.F.R. 145.211(c)(1)(iii).  An FAA repair station must follow that procedure.  14 C.F.R. 145.211(b).

The FAA regulations do not impose a specific response for incidents, although a repair station is free to develop its own procedure for responding to known incidents.  When the repair station is faced with a component that has been installed on an incident-related aircraft, the regulation impose no additional burden on the repair station – any decision to perform hidden damage assessment will be based on customer requests for inspection, maintenance manual provisions (some manuals require hidden damage assessment in all overhauls, regardless of whether there is an accident or incident history), and good safety practice (performing the assessment where circumstances suggest a need for such an assessment, even where the law might not require it).

However, where the occurrence has be designated as an accident, the analysis changes.  When an article is identified as having been involved in an accident, then the repair station has a legal obligation to follow its hidden damage assessment procedure.  Thus, if turbulence resulted in an accident (e.g. there was a serious injury to a person, like a fracture ***), then this could drive a legal obligation for hidden damage assessment under the repair station’s quality system.  One way to avoid this, where it becomes an inappropriate waste of inspection resources, might be for the repair station to write into its procedure a clause that permits it to waive the hidden damage inspection where the facts indicate that hidden damage to the particular unit in question was not reasonably possible from the reported event.

At a practical level, though, it is wise to ignore the semantic labels applied to a part, and consider whether the history of the part makes it plausible that there might be hidden damage.  In the case of a complete aircraft, turbulence that resulted in an incapacitating crew injury might be a serious incident (of the sort that the government wants to track in order to reduce such circumstances), but it is an expected environment for aircraft operation.  If there was no other basis for calling the occurrence an incident and is not be the sort of incident that could reasonably cause hidden damage to the aircraft, nor to any specific component from the aircraft, then hidden damage inspection might not be reasonably necessary.  This does not change the fact that the government wants to track injuries in order to find ways to protect against them.

On the other hand, there might be other occurrences that do not even rise to the level of incident that might nonetheless drive a need for a hidden damage assessment.  For example, if an aircraft is improperly chocked during a windstorm and gets pushed by the wind into a building, then this could cause stresses on the affected structure that might lead to cracking.  This is the sort of circumstance where hidden damage assessment of the affected structures might be appropriate.  But because no one was on the aircraft and it was not being operated, it is likely not an accident nor an incident as those terms are defined by ICAO (and, in the US, as those terms are defined by the NTSB).

I advise companies that hidden damage assessments should be applied as appropriate to the physical realities of possible hidden damage, and also as called-for in the appropriate maintenance manuals. An incident involving a catering truck hitting the aft portion of the fuselage is unlikely to cause hidden damage to avionics in the cockpit.

I also feel that once a hidden damage assessment has ruled out the possibility of hidden damage, there is no longer any practical need to continue to convey that accident incident history.  But a company must be careful to ensure that it is accurate in its commercial representations (for example, do not say that a part has never been installed on an incident-related aircraft if it has previously been so-installed; but it is acceptable to say that post-incident hidden damage assessment confirmed no hidden damage from the incident).

ASA continues to work on parts-specific language that allows a discloser to uniformly identify that any past possible damage to an article has been assessed and cleared through hidden damage assessment.  For more on this topic, be sure to attend the ASA Quality Committee meeting in Dallas, this fall!

18 Month Left Before ADS-B Equipage Deadline

ADS-B must be equipped in aircraft by January 1, 2020.  Does your inventory reflect this change?

In May 2010, the FAA published a final rule that required all aircraft flying in designated controlled airspace must be equipped with Automatic Dependent Surveillance—Broadcast (ADS–B) Out avionics on aircraft operating in Classes A, B, and C airspace, as well as certain other specified classes of airspace within the U.S. National Airspace System (NAS).

ADS–B Out broadcasts information about an aircraft through an onboard transmitter to a ground receiver. The FAA expected use of ADS–B Out to help in moving our air traffic control system from a radar-based system to a satellite-derived aircraft location system.  Today, air traffic control facilities across the country are already using ADS-B to separate traffic.

Only aircraft that fly in uncontrolled airspace, and aircraft without electrical systems, such as balloons and gliders, are exempt from the ADS-B mandate.

ADS-B Out reflects the transmitted information about the aircraft, its position, and its heading.  There is also an ADS-B In, which uses the ADS-B receiver to obtain information useful to the pilot.  ADS-B In equipment allows aircraft, when equipped properly, to receive and interpret other participating aircraft’s ADS-B Out data on a computer screen or an Electronic Flight Bag in the cockpit.

Many companies have already installed ADS-B equipment, but if you have customers that have not done so, then now is the time to help them make the transition before the deadline (which is only 18 months away).  If you or your business partners have any questions about equipage then you can find answers on the FAA’s Equip ADS-B webpage.  For more information about the technology, visit the FAA’s ADS-B website.

The Electronic Records/Signature Law (ESIGN) turns 18

The Electronic Signatures in Global and National Commerce Act (ESIGN) was signed into law on June 30, 2000.  That makes the law 18 years old on Sunday.  If there was any justice in the world, we’d all be buying the law a cigar and allowing it to vote.

ESIGN established a general rule of validity for electronic records, electronic contracts, and electronic signatures.  Prior to the law, many courts had refused to recognize electronic signatures and they questioned electronic records.

ESIGN applies to transactions “in interstate commerce,” which is a term of art meaning that the transaction is open to being regulated by Congress under the Interstate Commerce Clause of the Constitution (most transactions, today, are subject to the Interstate Commerce Clause of the Constitution).  Generally, it explains that when records and agreements are required to be in writing, an electronic version of them counts as a “writing.”

ESIGN also applies to federal and state government agencies.  They are forbidden from adopting record-keeping rules that would “impose unreasonable costs on the acceptance and use of electronic records.”  The law explains that if an agency wants to require paper records (to the exclusion of electronic), then the agency needs to show “there is a compelling governmental interest relating to law enforcement or national security for imposing such requirement.”

Eighteen years after the law was enacted, the aviation industry still struggles with full implementation of the law.  Even though it is clear that aviation records can be recorded and transmitted electronically, the aviation industry remains wedded to paper.  Nowhere is this more clear than with respect to parts documentation.  While distributors are now more comfortable reducing paper 8130-3 tags, and paper material certifications to electronic format for archival storage, transactional records remains stubbornly rooted to a paper paradigm.

One reason for this paper paradigm is because most aircraft parts are unserialized, and therefore it can be difficult to uniquely tie an electronic record to a particular (unserialized) part. A paper record, on the other hand, can be literally, physically, connected to the part to which it applies.  In a world in which we deal with so many different parts coming and going through our warehouses, paper records provide a level of comfort that we are connecting the uniquely correct record to the uniquely correct part.

The FAA has repeatedly said  that commercial documentation paradigms (like back-to-birth traceability) are not required by FAA regulations.  They have specifically stated that there is no Federal Aviation regulation that requires traceability of an aircraft part to its origin, and the FAA does not require back-to-birth records even for life-limited parts.  The FAA has explained that a part may be identified as having been released by a manufacturer as an airworthy part using  “a shipping document, a manufacturer’s certificate of conformance or material certification, or an FAA Airworthiness Approval Tag, Form 8130-3,”  but that in the absence of such documentation, “the part may be submitted for inspection and testing to determine conformity.”

Despite the best efforts of the FAA’s lawyers, the industry remains stubbornly rooted to a paperwork paradigm.  There are many commercial reasons for this, but one important pseudo-regulatory reason is that FAA inspectors frequently insist that the manuals for FAA certificate holders feature documentation requirements.  Once these requirements are published in the manuals, then these FAA-approved manuals drive the documentation requirements which are flowed-down throughout the industry.  And because these documentation requirements are not directly tied to FAA regulations, there is no opportunity to apply the ESIGN mandates and protections to them.

Through recent conversations with both the FAA and EASA, we are starting to see a new understanding of the value of several important paperwork paradigms:

  • limiting documentation ‘requirements’ only to those that are actually valuable to safety;
  • making acceptable safety information more readily available through available (and trusted) industry channels; and
  • permitting greater reliance on electronic information where availability of such data supports safety.

This is likely to be related to the greater reliance of the rest of the world on electronic data (a reliance that was facilitated by ESIGN), but it is also related to the fact that senior decision-makers in the FAA and EASA are more comfortable with electronic records than were their predecessors (again, a comfort that was facilitated by the impact of ESIGN on other parts of the world of data).  And they are also thinking more critically about what information supports safety (and should be encouraged) and what information does not support safety (and therefore becomes unnecessary to the FAA’s mission).

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