Back-to-Birth Traceability is STILL NOT a Legal Requirement

Lately, I have been encountering a number of people who appear to want back-to-birth traceability for articles that traditionally have not required back-to-birth traceability, like expendable articles.  The obvious problem is that when back-to-birth traceability has not been a requirement, it will often not exist for pre-existing articles.  A request for documentation that does not exist, and is not an industry norm, causes frustration for everyone involved.

An installer or other person determining airworthiness needs to have evidence to support that determination.  Evidence!  While back-to-birth traceability is certainly one form of evidence, the form of allowable evidence under current law is much broader than mere “back-to-birth traceability.”

Back-to-birth traceability has been a commercial norm for life-limited parts.  Nonetheless, in 1992, the FAA issued a Chief Counsel’s opinion letter explaining that this commercial norm is NOT an FAA requirement.

Back-to-birth traceability has NOT been a commercial norm for non-life-limited parts, like expendables.  It would be difficult to maintain reliable back-to-birth traceability for non-serialized parts, because of the difficulty in proving that the documents belong to the unserialized articles.

The FAA has repeatedly said that back-to-birth traceability is not an FAA requirement, and that traceability is not an FAA requirement.  The FAA Chief Counsel’s office issued at least three legal opinions between 1992 and 2009 asserting this.  One of the reasons that back-to-birth traceability is not an FAA requirement is because there is no regulation requiring it.  Under the Paperwork Reduction Act, the OMB needs to approve any situation where a person is required to create or maintain records – the OMB will then issue an OB control number to track that activity.  See, e.g., 44 U.S.C. § 3512 (preventing agencies from imposing any penalty for any record-keeping or other information-collection requirement unless the OMB has explicitly approved the requirement and the OMB control number is published with the requirement).  There has never been an OMB control number for back-to-birth traceability.

So if back-to-birth traceability is not a requirement, then what is a requirement?  Typically, our mission as distributors is to preserve evidence to support the ultimate airworthiness decision made by the installer.  The installer has a regulatory need to determine, at the time of installation, that the article will return the product to a condition at least equal to an acceptable/approved configuration (like type certificated configuration or STCed configuration).  E.g. 14 C.F.R. § 43.13(b).  The installer needs to use the right article (so proper identification is important) and needs to know that it is airworthy.  Airworthiness has been described in FAA guidance as (i) the article conforms to its design requirements and (ii) the article is in a condition for safe operation.  E.g. 14 C.F.R. 21.331(a)).  The installer needs evidence to support this conclusion, but the FAA regulations do not limit the forms of evidence that may be used.  FAA Chief Counsel opinions have addressed this and found that one could rely on a variety of different forms of evidence (traceability is just one way to develop the evidence).

Incidentally, when a designee makes a determination about airworthiness of an article the designee uses the same metrics (conforms to design requirements and is in a condition for safe operation).  The designee may then document that finding by issuing an 8130-3. So the same standards that apply to an installer’s determination of airworthiness could also apply to a designee’s determination.

There is a variety of sources of evidence that the industry has traditionally used to support an airworthiness determination. The regulations require Production Approval Holders (PAHs) to assure airworthiness of any articles they release before those articles are released.  Therefore, evidence that the part was released by an FAA PAH is sufficient to show that the part was airworthy at the time of release.  FAA guidance has made it clear that this does not mean back-to-birth traceability – but rather some lesser level of evidence.

FAA AC 20-62E explains, under the heading “PAH’s Documents or Markings,” that “Documents or markings such as shipping tickets and invoices may provide evidence that a part was produced by a manufacturer holding an FAA-approved manufacturing process.”  I have had people ask me about whether one may rely on packaging as evidence that a part came from a PAH. Packaging typically bears the PAH name and/or other marks that reference or represent the PAH. Such marks are protected from misuse under laws like the Lanham Act.  The Lanham Act provides both criminal and civil penalties for counterfeiting or other misuse of a PAH’s name or mark.  Part of the reason that the industry can rely on things like PAH packaging is because the law protects against counterfeiters who might try to spoof that packaging.  For reasons like this, industry generally relies on credible PAH packaging and commercial documentation.

Similarly, I have had people ask “what about counterfeiters who might spoof packaging or paperwork?”  There was famous tale in the 1990s of a counterfeiter who spoofed the Pratt and Whitney logo, but printed the Eagle upside-down.  Ultimately, though, modern technology makes it easy to create bogus paperwork (much easier than creating bogus parts), so insistence on back-to-birth traceability is not a sound strategy for counterfeit avoidance.  Packaging is a little harder to spoof, so it is potentially slightly more reliable than documentation.  But ultimately, we need to rely on our system of laws and industry norms to protect us.  Just as we do not assume everyone on the street is going to murder us, we also cannot assume that every article we receive is counterfeit.  Instead we rely on the convention that packaging and paperwork will be genuine,and that it is safe to rely on them; and then we apply counterfeit avoidance mechanisms to support that convention.  So that is part of why we rely on normal packaging and paperwork  as evidence that the part came from a PAH and was airworthy at the time of release.

Don’t forget that evidence of PAH sourcing – alone – may not be enough to install an article.  Articles can suffer damage or degradation, so the second half of the airworthiness analysis (“in a condition for safe operation”) also applies.  If we know that the article was airworthy in the past, and is unused, then the installer merely needs to assess whether the article has suffered damage or degradation since that release.

Designees and installers have historically relied on things like PAH packaging, PAH shipping tickets, PAH packing lists, etc. as evidence of sourcing from PAHs during their inspections.  The receiving inspection AC (FAA AC 20-154) explains that inspection is “[t]he act of testing or checking a product or part thereof against established standards to assure it conforms to its design requirements and is in a condition for safe operation.”  Note that the goal in that sentence is to assure that the article “conforms to its design requirements and is in a condition for safe operation” – these are the traditional elements of airworthiness.  This section goes on to explain that “Inspection could include documentation review, visual inspections, bench or functional tests, preservation (condition), packaging, technical data, or shelf life limits are a few examples to consider.”  So the FAA has explicitly recognized that checking documents and packaging is a part of the airworthiness check.

It is important to remember that industry’s obligation is to have sufficient evidence to support airworthiness decisions – not to have a ‘magic document’ nor back-to-birth traceability.  Documents from credible sources (like airline commercial documentation asserting identity and condition of the article) can be used as evidence of PAH sourcing, or of other important facts.

ASA Petitions FAA for Extension of DAR-56 Program

Last week ASA submitted a petition to the FAA formally requesting the indefinite extension of the Limited DAR-F Program for Accredited Distributors–commonly known as the DAR-56 program–that is scheduled to expire September 30, 2017.  ASA further requested an expansion of the program to better reflect the needs of the distribution community.  You may also recall that ASA recently led an industry effort that secured the reissuance of FAA Notice 8900.380 for another year. Both of these efforts are in response to the 8130-3 tag requirements arising out of MAG 6, which put billions of dollars of distributor inventory at risk.

ASA explained in its petition to extend DAR-56 indefinitely that the facts that gave rise to the need for the DAR-56 program have not changed and that the need for the program to continue was therefore very important to distributors.  The DAR-56 program permits Limited DAR-F’s to issue 8130-3 tags for parts on the basis of specific indicia of sourcing from the PAH.

As attendees of the ASA conference heard from members, distributors have so much inventory that needs to be tagged under the DAR-56 program that it could literally take years to tag every part.  This includes vast numbers of small, low-dollar-value parts for which hiring an independent designee would be economically infeasible.  ASA therefore proposed an indefinite extension of the program with semi-annual meetings between the FAA, ASA, and interested parties to discuss the ongoing need for the program so that it can be discontinued after a permanent solution is developed.

In addition to proposing an indefinite extension of the DAR-56 program (rather than annual extensions requiring yearly petitions and discussions), ASA also recommended changes that would improve the effectiveness of the program and help distributors.

At present, the DAR-56 program permits Limited DAR-F’s to issue 8130-3 tags under the following criteria:

  1. The aircraft part was received by the distributor prior to November 1, 2016 and
  2. The aircraft part must bear specific indicia of production under 14 C.F.R. Part 21:
    1. A certificate or statement of conformity that was issued by the production approval holder (any documentation part numbers and serial numbers, if applicable, must match any part markings); or,
    2. A certificate or statement of conformity that was issued by the production approval holder’s supplier, and a verification of direct shipment authorization; or,
    3. Markings regulated under 14 C.F.R. 45.15 and describing the PAH’s name or other identification (for parts, this would typically be limited to PMA, TSOA or critical parts).

ASA recommended that the program be extended as follows:

  1. The program be expanded to include any aircraft part that was received by the distributor at any time when the distributor was accredited under the AC 00-56 program.
  2. Expand the acceptable indicia of production under an FAA production approval to include other documentation the FAA has previously recognized:
    1. For an aircraft part that was accepted into an air carrier’s inventory system as new article, and then subsequently released from that air carrier’s inventory system, a document from the air carrier identifying the part by part number, and by serial number where appropriate, and identifying the part as new (including new surplus); or
    2. A maintenance release document showing (i) that the part was inspected under 14 C.F.R. Part 43 by a person authorized to approve such work for return to service, (ii) that the part was found to be in new condition, and (iii) a part number that matches a number known to be a PAH part number, and that matches the part number on the part, where applicable.

These proposed expansions reflect the fact that the November 1, 2016 receipt date appeared wholly arbitrary and neither supported nor required by any regulatory basis, and that the two additional forms of documentation are commonly accepted in the industry under Part 21 of the regulations.  This would solve the problem of those parts that are currently still being received without tags (as they continue to be released from PAH’s who do not issue tags, or as new surplus from air carriers without tags) and those parts that currently have PAH documentation but are nonetheless excluded under the terms of the current program.

ASA appreciates the FAA’s collaborative efforts to work with us to extend the DAR-56 program as we work toward a permanent solution to the MAG 6 8130-3 tag issue.  We will keep our members updated as we hear more from the FAA.


Aircraft Articles, and Eligibility for an Export 8130-3 tag

An ASA member was recently told by a DAR that the DAR could no longer issue export 8130-3 tags based on traceability paperwork, and that the DAR would have to perform a full conformity on the aircraft part before issuing an export 8130-3 tag.

As you might expect, the ASA member was disturbed by this news, and asked us whether the rules had changed.  They have not.  While it is true that the FAA’s rules, policy and standards are constantly changing, there has been no change that would forbid issue of an export 8130-3 tag for a demonstrably airworthy part.

It is important to remember that issuing an export 8130-3 tag is NOT exactly the same thing as conforming a part to design data.  The export 8130-3 tag documents an airworthiness finding, which can be made in a number of different ways.  The applicant has an obligation to demonstrate conformity to type design and condition for safe operation at the time of application for the export 8130-3 tag, but this showing can be made in several ways and conformity inspection is just one of those ways.

Here are just a few of the ways that an FAA designee with the right privileges can find that a new aircraft part is eligible for an export 8130-3 tag (all assume that the new part is still in a condition for safe operation):

  • Establish positive traceability to the production approval holder and then determine that the airworthiness of the part has not been compromised;
  • Identify a new production part based on Part 45 PMA markings (the PMA article cannot be so-marked and released from the production quality system unless the manufacturer ensured that the article conformed to its approved design and was in a condition for safe operation);
  • Identify a new production part accompanied by identifying documentation from the production approval holder such as a shipping document, a manufacturer’s certificate of conformance or material certification, or an FAA Airworthiness Approval Tag, Form 8130-3;
  • If a designee with appropriate privileges performs a successful conformity inspection to FAA-approved design data, then the designee has made a finding of airworthiness of the article and can obtain issue an 8130-3 tag. This is typically not necessary except in those cases where the article cannot be found airworthy based on documentation or markings.

These four ways are taken from just one FAA guidance document.  Other ways to find airworthiness are listed in other guidance documents, so this is not a complete list.

Don’t forget that a designee needs to follow the FAA guidance related to issue of the export 8130-3 tag, such as the rules found in FAA Order 8130.21H.  So mere eligibility for an 8130-3 tag may be insufficient if some other requirement cannot be met.

It is equally important to remember that an FAA designee cannot issue an 8130-3 tag for a part if he or she is unable to make a finding of airworthiness.  For example, used parts that have not yet been returned to an airworthy condition (e.g. through overhaul) are not yet eligible for an export 8130-3 tag.  There are special requirements for issuing export 8130-3 tag for used parts, so even after an overhaul, an export 8130-3 tag might be inappropriate in some situations.

So there is NOT a new FAA policy requiring a full conformity as a prerequisite to issue of an 8130-3 tag.  Such a policy would not be consistent with FAA policy, nor would it be consistent with the purpose of the 8130-3 tag, which is merely to document an airworthiness finding.

Is A Counterfeit Part an Unapproved Part?

A member recently  asked me whether a “counterfeit part” is by definition an “unapproved part.”

In the US, there is support for this statement in the FAA’s Advisory Circular AC 21-29C, which specifically defines the term “unapproved part” to include counterfeit parts in paragraph 3(p):

p. Unapproved Part. A part that does not meet the requirements of an approved part (refer to definition of approved parts in subparagraph 3b). This term also includes parts that may fall under one or more of the following categories:

(1) Parts shipped directly to the user by a manufacturer, supplier, or distributor, where the parts were not produced under the authority of (and in accordance with) an FAA production approval for the part (e.g., production overruns where the parts did not pass through an approved quality system).

NOTE: This includes parts shipped to an end user by a PAH’s supplier who does not have direct ship authority from the PAH.

(2) New parts that have passed through a PAH’s quality system which do not conform to the approved design/data.

NOTE: Do not report parts damaged due to shipping or warranty issues as an SUP.

(3) Parts that have been intentionally misrepresented, including counterfeit parts.

The FAA is able to make this definition for several reasons: (1) the term unapproved parts is not defined in the US regulations so there is no regulatory definition or connotation that limits the FAA’s ability to define this term in any way that they want; (2) the term unapproved parts is not used in the US regulations so the FAA’s definition in an AC has no regulatory affect; (3) the definition in AC 21-29C is limited only to the AC, and does not have legal effect outside the AC; and (4) the term unapproved parts is not the opposite of approved part, and under the FAA’s definitions a part may be both unapproved and approved (this is an unfortunate result of their definitions).

You may be surprised to see me assert that a part may be both unapproved and approved, but it has actually happened!  The problem lies in the fact that the definition of “unapproved parts” includes (a) parts that do not meet the requirements of an approved part and also (b) several other categories of parts that MAY meet the requirements of an approved part.  One of those categories is counterfeit parts.

There is actually a case where an OEM accused a PMA company of counterfeiting (OK – there are many of these cases but there is at least one where the OEM was actually successful in its claim).  There were no findings that the PMA company’s parts were unairworthy.  The PMA company was required to change the part number on the part in order to remedy the infringement (actually, they were required to apply to the FAA for design changes that would lead to a part number change).  See Whittaker Corporation v. Execuair Corporation.

Although there is advisory support for the assertion that a counterfeit part is, by definition, an unapproved part, this case shows that approved parts can also be described as counterfeit in the right circumstances.  The reason for this is because counterfeit aircraft parts typically are labelled as ‘counterfeit’ because they infringe another company’s trademarks.  Thus, the FAA could approve parts because they meet the technical requirements for such parts, but if those parts are marketed under another company’s trademarks then that is counterfeiting.

Let me give you an example.  Let’s say that I decide to obtain PMA on parts for a Rolls-Royce engine.  If I am able to demonstrate through testing and other proofs that my parts meet all applicable requirements for installation in the Rolls-Royce engine then I might be eligible to obtain PMA from the FAA for the parts (don’t forget that PMA entails a compliant quality system as well as an airworthy design).  Now, anything I produce that properly conforms to the PMA is an approved part.  But if I put those parts into boxes that say Rolls-Royce on them and sell them as if they were Rolls-Royce parts, then I am counterfeiting (because I have improperly used the Rolls-Royce trademark).  So by the AC 21-29C definition my parts are also unapproved.

So who has a right to do something about it?  The FAA should not take enforcement action against me in this hypothetical scenario, because I have not violated any FAA regulation (FAR 3 does not apply because the parts are airworthy and airworthiness is a ‘safe harbor’ under FAR 3).  But Rolls Royce may have an action against me under the Lanham Act for trademark infringement (in other words, for counterfeiting).

In summary, in the limited context of FAA AC 21-29C, a “counterfeit part” is (by definition) an “unapproved part.”  But because counterfeiting charges are based on trademark infringement, and not on safety/airworthiness, it is also possible that a counterfeit part could, in fact, also be an approved part.

Proposed Part 145 Could Eliminate Spot Repairs and Increase the Cost of Many Repairs

There are a number of problems with the FAA’s proposed revisions to the repair station rules.  One of those problems is that it could essentially do away with spot repairs.  As a matter of practice, it could require repair stations to overhaul parts every time they get them.  The reason for this is because of a subtle change in the quality system rules.

The current rule for those performing repairs is that they must ensure that the work performed is done correctly.  See 14 C.F.R. 43.9(a)(4) (signature constitutes approval for return to service only for the work performed).  But if their workscope does not encompass a finding of airworthiness for the entire article, then they do not need to also verify the airworthiness of the entire article.

I once represented a repair station that was asked to perform a simple alteration to a helicopter.  In their due diligence, they discovered that an AD was necessary for the rotorcraft.  When they called the owner, though, the owner said that they already had a contract with another repair station to have the AD work performed.  As a matter of their own due diligence and good record-keeping, they made a note that they had communicated to the owner that additional AD work was necessary before the rotorcraft flew.  An FAA inspector saw this note and brought an enforcement action against the repair station for failing to ensure that the entire rotorcraft was airworthy.  We were able to quickly get the enforcement action dismissed because the approval for return to service was limited only to the work accomplished, and not the work that was not described.  But this illustrates the issue –

Proposed 145.1211(a) would impose a burden on the repair station’s quality system to ensure the airworthiness of each article on which the repair station works.  Although based on existing quality system language, it could preclude spot repairs, and essentially require an overhaul in every component repair situation, in order to be able to ensure the airworthiness of the article.

§ 145.1211 Quality control system.

(a) A certificated repair station must establish and maintain a quality control system acceptable to the FAA that ensures the airworthiness of the articles on which the repair station or any of its contractors performs maintenance, preventive maintenance, or alterations.

Let’s look at this from a practical point of view.  A distributor has an overhauled avionics unit in their inventory.  The OEM issues a software upgrade.  The distributor wants to send the unit to a local avionics repair station for the sole purpose of installing the software upgrade.  The distributor does not want to pay for a complete overhaul of the unit, and a complete overhaul of the unit is not necessary.  But the local repair station performing the software upgrade would not be able to ensure the airworthiness of the component without performing a complete overhaul.  At first glance, this seems foolish, and some people might ask “why can’t the repair station simply rely on the approval for return to service from the earlier overhaul?”  The repair station is responsible for making its own findings.  The repair station is not automatically allowed to rely on the earlier approval for return to service because that sort of reliance would reflect a form of subcontracting (which is not permitted unless the task was approved in their subcontracting task list (14 C.F.R. 217(a)(1)) and the vendor is listed in their approved maintenance subcontracting vendor list (14 C.F.R. 217(a)(2))).

The proposed rule can be found at:

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