ASA Goes to Court to Protect Distributors

ASA will be protecting distributors’ rights next week when it argues before the U.S. Court of Appeals for the District of Columbia Circuit.

Many distributors have already felt the pinch of the new Maintenance Annex Guidance (MAG) standards which impose a requirement for 8130-3 tags when selling US-produced aircraft parts to dual-certificated repair stations in the United States.  This new standard ignores the plain language of the Maintenance Annex, which requires US repair stations to only adopt the European Special Conditions (those Special Conditions do not include an 8130-3 documentation requirement).  Moreover, it ignores the ‘safety valves’ that exist in the actual EASA regulations, so the standard imposed on US-based repair stations is actually more stringent that the standard imposed on EU-based repair stations.

This presents a problem for distributors who cannot economically obtain 8130-3 tags for all of the new PAH parts in their inventories.

ASA is seeking to have the documentation standard, that was introduced in the MAG, curtailed in favor of the plain language of the Maintenance Annex.  ASA is not opposed to the 8130-3 tag., but we recognize that many aircraft parts are accepted using other indicia of airworthiness, such as packaging or commercial documentation that traces the part to an FAA-production-approval-holder (FAA PAHs are prohibited from releasing an aircraft part from their quality assurance systems unless the part is FAA-approved, e.g. 21 C.F.R. § 21.146).

Both ASA and FAA have filed extensive briefs explaining the situation to the court.  The essence of the FAA’s claim is that the MAG is attributable to EASA, and so the FAA does not need to answer for it.  Our response is that the 8130-3 tag and other documentation requirements are not part of the Special Conditions, and the requirement is not a match for European law (European law is more reasonable that then plain language of the MAG).  So pointing a finger at EASA does not work.

What is in the EASA Special Conditions?  Here is the Special Condition language:

1. EASA SPECIAL CONDITIONS APPLICABLE TO U.S.-BASED REPAIR STATIONS
1.1. To be approved in accordance with EASA Part-145, pursuant to the terms of this Annex, the repair station shall comply with all of the following Special Conditions.
1.1.1.The repair station shall submit an application in a form and a manner acceptable to EASA.

(a) The application for both initial and continuation of the EASA approval shall include a statement demonstrating that the EASA certificate and/or rating is necessary for maintaining or altering aeronautical products registered or designed in an EU Member State or parts fitted thereon.
(b) The repair station shall provide a supplement to its Repair Station Manual (RSM) that is verified and accepted by the FAA on behalf of EASA. All revisions to the supplement must be accepted by the FAA. The supplement shall include the following:

(i) The supplement must contain a statement by the accountable manager of the repair station, as defined in the current version of EASA Part 145 which commits the repair station to compliance with this Annex and the special conditions as listed.
(ii) Detailed procedures for the operation of an independent quality monitoring system including oversight of all multiple facilities and line stations within the territory of the United States.
(iii) Procedures for the release or approval for return to service that meet the requirements of EASA Part-145 for aircraft and the use of the FAA Form 8130 3 for aircraft components, and any other information required by the owner or operator as appropriate.
(iv) For airframe/aircraft rated facilities, procedures to ensure that the certificate of airworthiness and the Airworthiness Review Certificate are valid prior to the issue of a release to service document.
(v) Procedures to ensure that repairs and modifications as defined by EASA requirements are accomplished in accordance with data approved by EASA.
(vi) A procedure for the repair station to ensure that the FAA-approved initial and recurrent training programme and any revision thereto include human factors training.
(vii) Procedures for reporting un-airworthy conditions as required by EASA Part-145 on civil aeronautical products to the EASA, aircraft design organization, and the customer or operator.
(viii) Procedures to ensure completeness of, and compliance with, the customer or operator work order or contract including notified EASA airworthiness directives and other notified mandatory instructions.
(ix) Procedures in place to ensure that contractors meet the terms of these implementation procedures; that is, using an EASA-approved Part-145 organization or, if using an organization which does not hold an EASA Part-145 approval, the repair station returning the product to service is responsible for ensuring its airworthiness.
(x) Procedures to permit work away from the fixed location on a recurring basis, when applicable
(xi) Procedures to ensure appropriate covered hangars are available for base maintenance of aircraft.

1.2. To continue to be approved in accordance with EASA Part-145, pursuant to the terms of this Annex, the repair station shall comply with the following. The FAA shall verify that the repair station:

(a) Allow EASA, or the FAA on behalf of EASA, to inspect it for continued compliance with the requirements of the 14 CFR part 145 and these Special Conditions (i.e. EASA Part-145).
(b) Accept that investigation and enforcement action may be taken by EASA in accordance with any relevant EC regulations and EASA procedures.
(c) Cooperate with any EASA investigation or enforcement action.
(d) Continue to comply with 14 CFR part 43 and part 145, and these Special Conditions.

Notice that the Special Conditions require the dual-certificated repair station to release work on an 8130-3 tag, but there is no correlative requirement to accept parts with an 8130-3 tag.  So the Special Conditions do not authorize the 8130-3 tag documentation requirement found in the MAG.

ASA continues to be open to a settlement that would protect the value of existing inventories, and has left the lines of communication open with the FAA.

Oral argument is scheduled for 9:30 am on Friday, January 13, 2017.  If you plan to be in the DC area then the proceedings are open to the public and you are welcome to join us.  The court is located at 333 Constitution Ave, NW, Washington, DC 20001. It is right behind the DC (local) Courthouse so be careful not to get confused! The FAA and ASA will each have a ten minute window within which to discuss their cases before the court.

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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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