FAA Efforts to Re-Tool Itself in Response to Covid-19 Closures

We had a phone call today with FAA Associate Administrator Ali Bahrami and his team.  This is part of a series of calls in which we’ve been engaged to share information and keep everyone working together during the Covid-19 crisis.  Bahrami is working from home but he nonetheless has been very transparent with the industry about the FAA’s efforts.

Here are some bullet points on new developments in aviation regulation:

  • FAA has issued a SAFO 20009 for air carrier crews.  This replaces SAFO 20003 (an earlier document with guidance for air carrier crews).  It includes guidance for health monitoring and health protection.
  • FAA is working on a new Special Federal Aviation Regulation (SFAR) to address a wide variety of issues that are caused by the current Covid-19 crisis.  This mostly addresses timing issues where certificates or approvals are expiring but cannot safely be renewed at the present time.  It is in FAA coordination and is moving toward finalization.  The next step will be DOT review.  DOT knows that this is a priority.  The FAA confirmed today that there is presently no authoritative list of items in the SFAR because the draft is still subject to change; nonetheless, the SFAR is expected to provide extensions for a number of recurring regulatory requirements, including:
    • Extensions of pilot currency requirements;
    • Extensions for certified flight instructor certificate requirements;
    • Extension of knowledge examination expiration periods;
    • Extension for filing certain documents under the FAA’s enforcement provisions;
    • Extensions for certain aircraft maintenance / continuing airworthiness requirements.
  • FAA issued an aircraft certification service policy for the use of remote technology.  Flight Standards has been working on their own corollary document.  FAA Maintenance Division Manager Jackie Black explained that the maintenance and operations industry sectors have different business needs from those of the manufacturing sector.  Thus, the Flight Standards guidance is different from the Aircraft Certification guidance.  This guidance was signed by Ricardo Domingo today so it will be issued very soon.  It has already been briefed to the Flight Standards managers.  Mr. Domingo asked Mr. Black to make it available to industry.
  • The FAA has the power to reinspect or reexamine an FAA-issued certificate at any time.  This is known as a 709 reexamination because the authority is found in 49 U.S.C. 44709.  For 709 reexaminations, the FAA has said that if you make a request then they can delay the re-examination or conduct it remotely.
  • The FAA is looking into how to handle IA recurrent training.  They have already extended the expiration date of existing approved courses.  There are some existing remote-delivery courses in the FAA’s IA-training database but many courses were approved only as “conventional” courses (e.g. live-and-in-person).  Forthcoming guidance will allow the current providers of already-approved courses to change the format of delivery (to permit remote delivery), without having to go through a burdensome re-approval process for the new method of delivery.
  • FAA has received an OMB memo about planning for the return of FAA employees to the office (using the White House’s three-phase approach).  FAA is currently defining a process that meets the OMB requirements, so they can be prepared for a return to in-office operations.



FAA Authorizes ASA to Perform Remote Auditing under AC 00-56B

This morning, the FAA sent a letter to ASA authorizing ASA to conduct remote audits during the Covid-19 National Emergency.

This will allow ASA-100 accredited companies to obtain audits during the coronavirus crisis, and to maintain their ASA-100 and AC 00-56B accreditation. ASA will continue to play its part in supporting safety through the aviation supply chain.

What if you are accredited to AC 00-56B through an ASACB audit under one of the ISO standards: ISO9001, AS9100, AS9110 or AS9120?  No problem.  ASACB also secured permission from the FAA to perform remote audits for AC 00-56B accreditees under one of the FAA-recognized ISO9001, AS9100, AS9110 and AS9120.  ANAB, the ANSI National Accreditation Board, has already issued permission for ASACB to perform remote audits.  Both sets of permission are necessary, because both FAA and ANAB have oversight authority over ASACB.


Why did ASA need to go through this formal approval process?

FAA AC 00-56 Accreditation Supports Safety

In the 1980s and 1990s, there were industry concerns that aircraft parts distribution could be a source of inadequate parts that failed to meet safety standards. The FAA investigated a number of options, such as regulating distibutors, and decided to try setting voluntary standards and permitting third party oversight as a tool for establishing safety assurance standards to be used in distribution.

The FAA published AC 00-56 (the Voluntary Industry Distributor Accreditation Program) in 1996. The program recognized Accreditation Organizations with standards that were considered acceptable to the FAA.  One of those Accreditation Organizations was ASA, which used ASA-100 (and later was also permitted to use ISO9001, AS9100, AS9110 and AS9120).  The recognized Accreditation Organizations were permitted to audit Distributors’ compliance to the published voluntary standard. This meant that the distributor had to meet the quality standard (ASA-100, ISO9001, AS9100, AS9110 or AS9120) and also all of the elements of AC )0-56.

Since the inspection of the program, the FAA has audited ASA to gauge the success of the program.  FAA program audits have confirmed that this AC 00-56B program reflects a sound safety program that makes a positive contribution to aviation safety. The AC 00-56 Program has become an important tool to assist the FAA in ensuring aviation safety.

AC 00-56 has become a globally recognized program. There are AC 00-56 accredited distributors on every continent except Antarctica. The European Union has promulgated laws requiring Part 145 certificate holders to have procedures for accepting components. EASA 145.A.42(b)(i). EASA has interpreted this to mean that 145 organizations must evaluate their suppliers (EASA AMC1 145.A.42(b)(i) Components, ¶ (b)). AC 00-56 (and ASA-100) has been recognized as an acceptable program for supplier evaluation under European supplier control laws (EASA GM3 145.A.42(b)(i) Components, ¶ (b)(4)).  ASA has been in talks with other civil aviation authorities around the world to encourage them to adopt similar provisions recognizing the value of distributor accreditation.

AC 00-56B Requires Onsite Auditing

One of the features of the AC 00-56B program is onsite auditing of the Distributors. AC 00-56B requires onsite audits in section eight, paragraphs (b) and (f). The onsite audits are performed by qualified auditors who meet the requirements of AC 00-56B, under the coordination of Accreditation Organizations recognized in AC 00-56B.

On March 13, 2020, President Trump issued a Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Outbreak. The Proclamation recognized that “[t]he spread of COVID-19 within our Nation’s communities threatens to strain our Nation’s healthcare systems.” Since that date, many United States governors and mayors have issued correlative orders: restricting travel and requiring people to remain in their residences. Covid-19 has affected the availability and advisability of travel.

Health concerns related to Covid-19 are making onsite auditing under AC 00-56B an unnecessary risk.  Travel restrictions and state “stay-at-home” orders are making it impractical to perform onsite auditing under AC 00-56B.  Remote auditing mitigates the risks posed by onsite auditing, while providing a practical response to the need to “stay-at-home” to reduce disease transmission.

While remote auditing seems like the right response, it is still not permitted under AC 00-56B.  Thus, the industry needed a formal FAA deviation or exemption that permitted remote auditing.  ASA discussed with the FAA issuing a Notice to permit industry-wide remote auditing under AC 00-56B, but the FAA was uncomfortable with this because of the need for procedures that would ensure remote auditing was successful.  ASA petitioned the FAA to permit ASA to perform remote audits, based upon ASA’s remote auditing process and remote auditing auditor training program.

Remote Auditing the Right Way

The FAA authority is subject to ASA’s internal procedures for remote auditing, which have been developed by the audit team to help ensure an equivalent level of safety assurance. These procedures include new techniques for investigation by the audit team, and identification of objective evidence of adequate compliance.

ASA has already performed auditor training to teach the audit team how to perform remote auditing successfully.  Additional staff training is now planned for the approved procedures.

The current ASA authorization from the FAA for remote auditing is valid from April 1, 2020 through December 31, 2020.  The scope is global, so that ASA can continue to provide services to clients everywhere in the world.

UK Aviation Remains Subject to the EASA Standards and Bilaterals Through the End of the Year

Good news!  The UK and EU have taken the position that EASA regulations will continue to apply to the UK (and in the UK) during the transition period (post-Brexit).  The transition period will last from Februrary 1, 2020 through December 31, 2020.

The EU and UK have both signed the Withdrawal Agreement.  The EU issued a formal notice announcing the Withdrawal Agreement, earlier today.  Article 127(1) of the Withdrawal Agreement states:

“Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.”

This means that the Regulation (EU) 2019/494 (which had originally been expected to control aviation safety between EU and UK) will not come into effect.

The UK CAA updated their Brexit microsite, this morning, to reflect the application of EU law during the transition period.

This is a significant relief to many; as late as January 15, the EU had published plans that stated that the UK would have no recourse to EASA rules after Brexit, explaining that for the UK aviation community:

“All current EU law-based rights, obligations and benefits cease”

The industry is breathing a collective sigh of relief that this is not coming to pass (at least not yet).

International Response

In order for this to be truly effective, the rest of the world will need to allow the UK to be covered under the EU agreements, like bilateral aviation safety agreements and working arrangements.  If they refuse to allow the EU agreements to be extended to the UK (which will no longer be a part of the EU, tomorrow) then this could cause significant issues in accepting UK-sourced aviation goods and services.  The US has taken a leadership role in this regard by announcing its acceptance of the transition-period relationship.

Earlier today, the FAA circulated a letter from FAA Associate Administrator Ali Bahrami announcing that the United States will treat the UK as remaining subject to the US-EU aviation safety agreements during the transition period.

We expect other countries to continue to honor this relationship during the transition period (as of this morning, no analogous announcements had been made by Brazil, Canada or Japan – the other three nations to have negotiated post-Brexit airworthiness agreements with the UK – but this dearth of guidance is likely due to the short timing).

The fact that other countries are likely to honor this arrangement would make aircraft parts transactions smoother for the coming year, but it is not 100% good news.   The UK-Canada bilateral aviation safety agreement (BASA) was expected to permit reciprocal acceptance of component maintenance – a dramatic leap forward in international aviation safety comity.  Transport Canada has not issued any formal statement concerning the effect of the Withdrawal Agreement, but if they do treat the UK as part of the EU for bilateral aviation safety agreement purposes (during the transition period), it may delay to an important advance.


Change 7 to the FAA-EASA Maintenance Annex Guidance

Change seven to the FAA-EASA Maintenance Annex Guidance has been published.  The 171 page document was effective on its publication date (November 18, 2019) and must be implemented within 90 days of the issue date (February 16 is a Sunday, so that means February 17, 2020).

The latest draft appears to correct the prior omission of third parties authorities – like Brazil – by drawing reference to the third-party bilateral agreements.

ASA will publish more about how this affects distributors, soon, and this will be a topic of discussion at the Quality Committee Meeting on Friday December 6, 2019, in Dallas.

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.

Government to Reopen Temporarily; Get Your FAA Services in Order NOW!

The President announced this afternoon that he had struck a deal to reopen the government.  The deal will reopen the government for three weeks.

During his announcement, the President made it clear that “we really have no choice but to build a powerful wall or steel barrier.”  He made it clear that the government will shut down on February 15 if he does not get the funding that he desires for this project.

The President suggested, optionally, that he may declare state of emergency; but we still have to see any legal scholar suggest a way that either Title 6 (Domestic Security, including FEMA’s laws) or Title 50 (National Emergencies and International Emergency Economic Powers) permits the President to order unappropriated spending on capital projects.  If the President can’t find a legal way to circumvent the Constitutional requirement for appropriations, then the emergency declaration gambit may ring hollow – which means that we should anticipate the possibility of another government shutdown on February 15.

Because this agreement is only for three weeks, the industry should focus its attention on the US government and on services that are necessary.  For example, designees should ensure that their privileges are renewed during this window. Designees are an important part of the safety assurance process in our industry, so we should prioritize efforts to ensure that they can provide safety-related approval andcertification services in the event of a subsequent government funding lapse.

Designees may want to work with their FAA-Advisors to seek ’emergency clause’ authority, in which any extended government shutdown would enable emergency procedures.  Such emergency procedures could include:

  • where project-level permissions are typically required, the designee would have temporary permission to provide approvals or other support within certain pre-described parameters
  • permission for the designee to engage in normal (pre-defined) activities during the shutdown;
  • tolling of any expiration of authority that occurs during the shutdown period until a reasonable time after the lapse in funding is remedied (privileges should continue at the level immediately before the shutdown);
  • an obligation for the designee to make a full accounting to the FAA Advisor of any emergency authorities used, so the FAA Advisor can engage in appropriate post-shutdown oversight; and,
  • any other provisions that the designee and FAA-Advisor agree are reasonably necessary to protect safety in the event of a lapse in government funding.

ASA Members Confirm that Designee Oversight is Restarting

We have been communicating with senior FAA management about the issue of FAA designees whose privileges expire during the government shutdown.  While renewal is usually a straight-forward process, the shutdown has prevented the FAA from renewing designee privileges that are essential to the continued safe functioning of the aviation system.  Designee oversight is an important part of the FAA’s safety oversight system, and FAA has identified it as one of the important functions that should be conducted during the shutdown.

Yesterday, we reported that nearly 3000 additional FAA aviation safety staff had been ordered back to work. We are already seeing the results of this return.

Today, members began to confirm that the FAA was confirming renewal of designee privileges through their online system.  We know that some flight standards designees who were awaiting renewal have received their renewal notifications.

Aircraft certification designees should start enjoying the same oversight, as well.  The FAA has confirmed that some Aircraft Certification staff are among the safety personnel being recalled.

As of today the MIDO’s are nearly up to full strength. The FAA’s focus is on returning the MIDO employees to work, restructuring oversight plans, and starting surveillance up again.  This should be good news for DARs whose delegated privileges are issued via a MIDO.  FAA senior management has clarified that one of the focal areas for the returning aviation safety staff is designee oversight (including both ODAs and individual designees).  The FAA is also recalling a small number of Aircraft Certification engineers, who will be focused on continued airworthiness tasks, including designee oversight (e.g. DERs).

These returning FAA employees will continue to work without pay until the lapse in funding has ended. Congress passed a bi-partisan bill to ensure payment of back-pay to the federal employees, and that bill was signed by the President yesterday, so we know they will be paid, eventually. ASA continues to empathize with the FAA staff whose pay remains withheld, but we also remain proud of the dedicated FAA staff who are returning to their safety mission during the funding lapse.

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