Update on MAG issue and ASA Efforts

What is the Issue?

The latest revision of the Maintenance Annex Guidance [“MAG”] creates a new system in which existing industry documentation (which is acceptable under current EU and US regulations) becomes unacceptable within US repair stations. It is objectionable because it imposes new documentation standards that do not exist in either US or European regulations, and in doing so creates a documentation requirement for aircraft parts that will render worthless significant portions of existing aircraft parts inventories.

Under current US standards, no documentation is required in order to receive an aircraft part into a repair station’s inventory. See, e.g., FAA Chief Counsel’s Opinion Letter (August 6, 2009) (stating “there is no Federal Aviation regulation that requires traceability of an aircraft part to its origin” and explaining that parts may be found airworthy based on documentation, markings, or inspection and testing).  The repair station may install the part as long as it confirms that the article will return the product to a condition “at least equal to its original or properly altered condition.” 14 C.F.R. § 43.13.

The European system is a bit different. The European system distinguishes parts into six different categories, but for purposes of this analysis only two are relevant.

The first is serviceable parts – those in a satisfactory condition. Serviceable parts must be accompanied by the European manufacturer’s document known as the EASA Form One, or an equivalent document. EASA 145.A.42(a)(1).  EASA has recognized that the FAA 8130-3 tag is an equivalent document for receipt purposes (when signed on the left side).  EASA AMC M.A.501(a) ¶ (5)(a) (documents under the terms of a bilateral agreement); Technical Implementation Procedures for Airworthiness and Environmental Certification Between the FAA and EASA, ¶ 5.1.10 (Rev. 5 Sept. 15, 2015) (the bilateral agreement).

Because there are many articles produced by US manufacturers that do not bear 8130-3 tags, a ‘safety valve’ provision allows European repair stations to accept articles without such documentation.

There is a second provision in the EASA regulations that permits “unserviceable parts” to enter into a repair station without documentation when they are intended to be maintained. EASA 145.A.42(a)(2).  The European definition of “unserviceable” includes articles that are missing “necessary information to determine the airworthiness status or eligibility for installation.” EASA M.A.504(a)(3).  Thus, any new aircraft part that is missing an EASA Form One or 8130-3 (whichever is appropriate) is deemed unserviceable and can enter a repair station without documentation. Such an article may then be inspected to serviceable condition and installed if it passes inspection. See, e.g., EASA AMC M.A.501(a) (Installation); EASA AMC M.A.613(a) (Component certificate of release to service).  It cannot be treated as serviceable until it undergoes that inspection.

The problem with the MAG is that it closes the safety valve that allows acceptance of new parts without an 8130-3 or EASA Form One. It does this by establishing two different categories that are inconsistent with the “serviceable/ unserviceable” categories established under European law. The two categories are “new” and “used.” Under existing European law, a new part without the correct documentation can be received as unserviceable, and subsequently inspected to serviceable condition, but under the MAG, a new part is required to have an 8130-3 or EASA Form One. There is no exception under the MAG for new parts without the designated documentation – they are simply excluded.

So How Does this Affect Members?

Actual implementation has already shown that the language of the MAG is being enforced by FAA field inspectors as mandatory even though there is no regulatory basis under US or EU law for such enforcement. Thus, the real implementation has been that all US repair stations with EASA credentials are required to have a written manual (known as a Supplement) requiring them to exclude new parts without 8130-3 documents or EASA Form One documents – even though both US and EU regulations permit acceptance of these new parts.

This is starting to have a real world effect that will be expanded with the October 1, 2016 implementation.  Distributors are finding that parts that they could sell with manufacture’s trace (or other reasonable trace) are no longer “good enough.” Repair stations are starting to demand 8130-3 tags on everything (including parts that are not eligible for 8130-3 tags).

What is ASA Doing About It?

ASA continues to work with the FAA to achieve a solution.  FAA management recognizes that this is a potential problem, and they have been optimistic about finding a solution.

Our first efforts were to find a way to “grandfather” existing aircraft parts inventories.  FAA supported this solution, but EASA opposed it.

We have also asked for guidance explaining that repair stations can apply US standards to parts destined for US registered aircraft, but early implementers have shown that this idea is not consistent with what FAA inspectors are requesting so it is likely to be ineffective.  In addition, it creates a logistical problem for component repair stations who may not know the ultimate destination of the components on which they are working.

We are now looking at new ways to obtain 8130-3 tags for good inventory.  This will not be a 100% solution to the impediment created by the documentation requirements, but it should help preserve the value of some inventories.  We expect to continue discussions of this proposal with the FAA, next week.

On the legal front, we continue to pursue a halt to the MAG documentation requirements.  This would not affect the EASA regulations – they still apply where appropriate – but to the extent that the MAG imposes additional standards that would be enforced by the FAA, we have asked the DC Circuit Court to issue a “Stay” that would prevent the FAA-enforcement of these new documentation requirements.

Today, as part of this effort, we filed this Motion for a Stay.  We would like to thank the many ASA members who worked with us to develop  affidavits explaining the factual situation of 8130- 3tags and aircraft parts inventories.

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About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

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