FUNCTION CODE 56 UPDATE: Airline Sourcing is OK; but PAH Trace Must be Established

Recent confusion about the use of function code 56 has caused some consternation in the industry.  The focus of this issue has been on parts obtained from air carriers (which represents a significant portion of the industry’s surplus parts).

The issue arose from an FAA email that incorrectly stated that articles obtained from an air carrier were ineligible for 8130-3.  This was not a correct statement, and the FAA is planning to issue a follow-up email to correct this statement.

Our FAA contacts says that they have seen at least one case where Limited DAR-F’s are issuing 8130-3 tags for parts that were not traceable to a PAH in accordance with the criteria FAA established in the DAR 56 policy memo of October 14, 2016.  The FAA reports that a function code 56 designee had issued tags based solely on paperwork from an airline, in the absence of paperwork or markings from the PAH. While some DAR function codes permit reliance on air carrier evidence (e.g. to identify new surplus parts), function code 56 does not permit that to be the sole basis of an airworthiness decision.

Recently the FAA sent an email to the entire Limited DAR-F community to warn them about this issue.  The intent of the email was to make it clear that the paperwork or the physical part markings had to be traceable to a PAH in order to issue an 8130-3 tag under DAR function code 56.

The recent emailed guidance suggested that function code 56 does not allow 8130-3 tags for articles from Part 121 air carriers.  This description was not an accurate portrayal of FAA policy, because the statement was truncated.  We have discussed this matter with Scott Geddie, who heads up designee policy for the FAA, and he confirmed that the correct statement should have looked like this:

This program DOES NOT allow issuance of an 8130-3 tag for:

….

  • Parts or articles obtained from an FAA Part 121 air carrier, unless proper documentation exists from the PAH or there are part markings traceable to the PAH

The italicized text (above) was not in the original FAA email, but the FAA has pledged to send a follow-up email with the italicized text, and has confirmed that italicized text represents the intent of the FAA.

For comparison purposes, the original October 14, 2016 policy memo makes the function code 56 requirements very clear.  To issue an 8130-3 under function code 56, you need one of the following:

  1. Certificate of Conformity/Statement of Conformity from a Production Approval Holder (PAH); or
  2. Certificate of Conformity/Statement of Conformity or shipping document from a PAH supplier with verification of direct ship authorization; or
  3. Part Markings made under 14 C.F.R. § 45.15.

If you have other evidence of airworthiness (like valid air carrier trace), then an 8130-3 may still be issued – but it must be issued by a DAR with a different function code.

“Last Certificated Agency” on Spec 106: What does it Mean?

One of ASA’s members wrote to me with a Spec 106 question.  It is a question that I have heard before.  At its root, the question is, “What does block 13C on the ATA Spec 106 form (“Last Certificated Agency”) mean and whose name do we put into that block?”

In this case, a distributor was planning on purchasing aircraft parts from a non-US air carrier.  The carrier in question is a foreign regional carrier (FRC) with no Part 129 certification from the FAA.  The distributor was wondering whether the FRC could be “Last Certified Agency” of Block 13C of their ATA-106?  The answer to that question depends on whether the FCC has performed a maintenance activity on the part.

The Spec 106 instructions for block 13C very simply say:

“Name the last certificated agency and its certificate number who last performed maintenance on the part.”

Although this sentence likely anticipated FAA-certificated agencies (because it was written over 20 years ago by US air carrier representatives), that limitation is not specified in the instructions.

Something that is specified in the instructions is that suppliers of surplus parts that have been inspected shall include a document from a FAA 121, 135, 129 or 145 certificate holder indicating condition.  This would be in addition to the Spec 106 form.  This is not a regulatory requirement, but it is a requirement of the specification in section 3-7, and it shows us what was considered appropriate when the specification was developed.

Back to our fact pattern; the distributor indicated that the FRC employs certified inspectors.  These inspectors perform inspection at the time of receipt (receiving inspection) and issue documentation stating that the part is considered airworthy.   Inspection is typically considered a maintenance activity that must be reflected in an approval for return to service or other maintenance release.  Typically receiving inspections are not considered to be maintenance activities in their own right, but are part of the maintenance organization’s activities.  But if receiving inspection is treated as a separate maintenance activity in this FRC, and receiving inspection is documented as such, then this activity coul dbe a maintenance activity performed by a certificated agency.

So now we have to look at what kind fo parts are being transacted in this case.

If the parts are new parts that are surplus to the FRC’s needs, then the inspectors could inspect them to new condition, issue appropriate approval for return to service verifying that the parts have been inspected to new condition, and then the Spec 106 form could list the FRC as the last certified agency in block 13C.  This may be subject to the same section 3-7 caveat mentioned above if the parts are received by a company with a Spec-106 compliance receiving inspection system.  But the idea of issuing an air carrier approval for return to service is not a new one.  Northwest Airlines used to issue 8130-3 tags for their surplus parts indicating that the parts had been inspected to verify the condition in which they were sold.  For new surplus parts, this meant that their new, unused, status has been confirmed.  An FRC could use whatever maintenance release form they typically use (such as the ANAC SEGVOO-003, CAAC AAC-038, EASA Form One, TCCA Form One, etc.) in order to document the inspection.  They should be careful to describe what inspection was performed in the remarks block of the maintenance release form.

But what if we are talking about parts in ‘as removed’ condition?  In such a case, the FRC could still be the last certificated agency if it performed an activity like an inspection.  For example, a post-removal inspection that verifies atht the part is unairworthy could be a maintenance activity.  In this case the activity would be the inspection, and the unserviceable tag could be the record of the work performed (to meet this requirement, it typically needs to state what work was performed, e.g. the inspection).

Just because the part is not serviceable does not negate the fact that an inspection was performed and documented.  But of course, the FRC must have appropriate maintenance capabilities to perform the inspection in question – if they do not (e.g. because all of their maintenance work is performed by contractors) then their ‘inspection’ might represent unauthorized maintenance – in such a case the maintenance contractor might the appropriate party to perform and document the inspection in question.  In that situation, the maintenance contractor may be the last certificated party.

OPPORTUNITY FOR IMPROVEMENT

One of the issues with the Spec 106 form is that the instruction set is not very well suited to non-US operations (it was written for A4A in the 1990s).  IN today’s industry, global operations and global sources fo supply have become the norm.

ASA is currently working on proposed revisions to spec 106.  we have formed a subcommittee from among our Quality Assurance Committee and that group has been working on proposed changes.

Our work plan, which we’ve coordinated with IATA and A4A, is that we will next share our proposals with IATA and then ASA and IATA intend to jointly present a set of proposed changes to A4A.  Because the ATA specifications belong to A4A, A4A is the final arbiter of any changes to ATA Spec 106.

If you have any interest in participating in this process, then please let ASA know; we are currently working on this project, and plan to have our proposals ready quite soon.  We will be briefing the Quality Assurance Committee on progress at the Annual Conference in July, so we would appreciate your input NOW to make sure it is included in the ASA proposal.

FAA Guidance on Approval for Return to Service (Right-Side-Signed 8130-3 Tags) – Comment Period Extended

The FAA has issued a draft guidance document for 8130-3 tags when the tags are completed as Approvals for Return to Service (ARTS).

The draft guidance is currently known as AC 43-ARTS, Use of FAA Form 8130-3 for Approval for Return to Service Under Part 43, and can be found online at

https://www.faa.gov/aircraft/draft_docs/media/afs/AC-43-ARTS_Coord_Copy.pdf.

The draft guidance may impose new standards with inadequate regulatory basis.

The purpose of the new guidance is to provide guidance for compliance with the approval for return to service requirements found in part 43; but it seems to impose new requirements that are not found in Part 43.  The draft guidance also suggests that one may not use an 8130-3 tag as the ARTS unless the person follows the AC; this would make the AC a de facto regulatory requirement in light of the strong emphasis that the FAA has placed on the use of the 8130-3 tag as the norm for approval for return to service.

The draft guidance also requires following the standards published in AC 120-78 as a condition of being permitted to use electronic 8130-3 tags.  This mandate contradicts AC 120-78 which made those standards voluntary/advisory.

Comments were previously due on March 13.  ASA joined with several other trade associations to request an extension, and now the comment period has been extended to June 12, 2017.

The draft advisory circular is available for review online at https://www.faa.gov/aircraft/draft_docs/media/afs/AC_43-ARTS_Coord_Copy.pdf.  Comments should be submitted by email to Griffin.CTR.Moar@FAA.gov.  Please send a copy of your comments to ASA so we can be sure to echo our members’ concerns.

ASA Argues 8130-3 Tags Before the DC Circuit

ASA appeared in court this morning to argue that the FAA’s new MAG-based documentation requirements violate US law and should be enjoined.  This is an important case for distributors whose parts sales have been impacted by the MAG.

The three judge panel consisted of Judge Tatel, Judge Millet and Judge Williams. Most judges are pretty smart, but these are three of the top jurists in the country.

We tried to focus the written briefs on the simple legal issues, but the underlying issues – those that involve questions like “just what is an 8130-3 tag, anyway,” and “why is the government doing this”? – are very complicated. Copies of our written briefs are available here:

As you might expect from three very smart judges, they wanted to know what the case was really all about.  This was difficult because the case is limited to the record on appeal and the FAA’s official ‘record’ was very sparse.  Last summer, ASA had tried to supplement the record with additional facts (affidavits from our members), but the FAA opposed our efforts (they standard approach is to limit the appeal to the record, so the court denied our efforts to supplement the record, but did take the member affidavits into account in analyzing our motion for a stay).  So we found ourselves having to describe a set of facts that were not well-documented in the record (and a lawyer is not supposed to testify as to new facts).

We did our best to try to explain how documentation works in the industry and when parts might enter a system without an 8130-3 tag, but with other indicia of airworthiness.

Questioning ran long this morning, as the judges tried to understand how 8130-3 tags work, and when (if ever) a part is allowed to enter a repair station without an 8130-3 tag.  The FAA’s attorney did not help matters by suggesting that parts without 8130-3 tags “lack provenance,” but we were able to explain that parts can be identified using other means and that the FAA has endorsed the use of other means of identification in AC 20-62E.

The Court was very much focused on FAA Notice 8900.380.  This is the Notice that reminds repair stations that they can inspect a part that doesn’t have an 8130-3 tag.  ARSA has put together an excellent checklist for that sort of inspection.  But even that FAA Notice 8900.380 appears to fall short, as some FAA inspectors have suggested that the Notice does not remedy the MAG requirement for a left-side signatures (“release must be documented on an FAA Form 8130-3 as a new part”).  So we have run into a problem with the Notice (which was supposed to at least provide a temporary solution) being ignored by the FAA’s own inspectors (who would not permit their repair station charges to adopt the terms of the Notice.

Judge Williams closed out the argument by suggesting the Europeans “snookered the US.”

The next step in the case is for ASA to wait for the opinion from the Court. There is no specific timetable for an opinion but often opinions are issued about 60-90 days after argument.  ASA remains engaged with the FAA in an effort to resolve some of the underlying issues in a way that allows airworthy parts to be accepted and used

An audio recording of the oral argument is available on line; you can hear the lawyers but unfortunately the Judges are difficult to hear on the recording (this is unfortunate indeed as their questioning demonstrated a keen thought process for each).

 

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.

ASA and FAA Meet to Discuss 8130-3 Options

On December 20th, ASA met with FAA Aircraft Certification Director Dorenda Baker.  In addition to ASA staff and FAA staff, the meeting also included ASA members John Nepola (East Air), Brent Webb (CAVU Aerospace), Mitch Weinberg (International Aircraft Associates) and Paul Wolf (Boeing).  The topic of discussion was the documentation (8130-3 tag) requirements of the FAA/EASA Maintenance Annex Guidance (MAG).

During the meeting, the FAA agreed that the new documentation standards appear to reflect an unintended consequence.  This members explained that the unintended consequence is adversely affecting domestic aircraft parts transactions and is creating an environment that could diminish safety.

The FAA has expressed that there are some international political pressures that make it difficult to rescind the documentation requirements of the FAA/EASA MAG.  So we discussed ways to support the documentation paradigm by making 8130-3 tags reasonably available for existing, airworthy, inventory.

One option would be to add a considerable number of new DARs to the system.  The actual number of DARs available to tag aircraft parts inventories is frighteningly small, which has led to monopolistic pricing, which has caused their services to become economically unavailable for many aircraft parts.

The DAR Function Code 56 privilege reflected a good start, but the privilege is too narrow to do much good.  Even for distributors whose business models are perfectly aligned with the function code’s scope, they found that only about 1/3 of their inventory could be tagged under this function code.  And most distributors found that the privilege was considerably less useful than that.  Consistent with our June 2016 written proposal, we suggest that

  • the function be expanded to include parts bearing indicia of airworthiness (including documentation from certificated air carriers indicating that the parts are in new surplus condition, as well as documentation described in FAA AC 20-62E);
  • the end date of the program be extended (in part because aircraft parts are still being manufactured and released without 8130-3 tags, and in part because it is still common for air carriers to sell new surplus inventories without 8130-3 tags);
  • the program element that limits Function Code 56 to only parts received before November 1, 2016 be removed.

The FAA has limited ability to oversee new DARs.  For this reason, ASA has volunteered to audit DARs operating within the ASA-100 environment (subject to their own willingness to be audited).  ASA is already auditing these facilities on a regular basis under the AC 00-56 program, and is already subject to FAA oversight within this AC 00-56 program.  The FAA may use ASA’s audits as a risk-mitigating factor in planning its own oversight schedules.

We have discussed other options, like creating an ODA for distribution businesses to obtain 8130-3 tags, or rapidly increasing the community of DAR-F or DAR-T personnel; but the DAR Function Code 56 program seems like a solid foundation upon which to build a scalable program that can be scaled-up to meet FAA safety needs, and then scaled-down as the industry moves into the new documentation paradigm.

Getting Training to Support Your DAR-56 8130-3 Tag Privileges

Still haven’t started applying for the DAR 56 program?  This is the program that allows employees of accredited distributors to issue 8130-3 tags for parts that meet certain FAA-defined airworthiness criteria.  If you are having trouble getting started, then the best way to start is to take the FAA’s online DAR course about how to issue an 8130-3 tag.

We’ve previously published the details about how to apply for the program.  ASA member Jay Rosenberg has provided us with detailed instructions on navigating the FAA’s 8130-3 training class.  Jay is the Director of Operations and Quality for United Aerospace Corp.  He also served as the Chairman of the ASA Quality Assurance Committee and as an ASA Board member.  Here are his guidelines:

I mentioned that I would send you some instructions on clarifying the registering process for the DAR-56 online training site.

  1. You need to setup an account profile: https://av-info.faa.gov/DsgReg/login.aspx
  1. After enrolling you need to sign in and choose the course (“Issuance of 8130-3 for Domestic and Export Approvals of Engines, Propellers & Articles Only”)
  1. Pay for the course ($100.00)
  1. After enrolling and choosing the course you will see a page with your course enrollments which show two courses. One is on the DMS system and the other one is about 8130-3 for domestic and export.
  1. When you click the schedule tab you have to go thru a few pages and choose the right course:
    1. Designee and Delegated Organization training
      1. Designated Airworthiness Representatives
        1. Issuance of 8130-3 for Domestic and Export Approvals of Engines, Propellers & Articles Only

    After doing all this then you get to web link:

    https://av-info.faa.gov/DsgReg/Sections.aspx?CourseInfoID=395

  1. After reading all the material you will be required to take an exam.

You only have only one shot at it to pass…!

If you pass the certificate will be listed on your enrollment screen to download.

We’ve heard from a number of members that one problem is that the DAR-56 program only supports a small number of the parts that need 8130-3 tags, and that most of the parts that now need the tags are not eligible under the program.  That may be true, but it is not a reason to eschew the program.  A partial solution is better than no solution – and ASA is working with the FAA on other partial solutions to try to better resolve the issues facing the industry.

Remember – there is only a limited time to take advantage of this program, so you need to get each of your eligible employees qualified as soon as possible in order to get the maximum benefit from the program.  The first step to that DAR-56 qualification is to get the eligible employees trained!

%d bloggers like this: