EASA Proposes New SMS (and other) Changes to Part 21 and Part 145

EASA has issued a Notice of Proposed Amendment (NPA) that would establish new SMS regulations for repair stations and manufacturers.

This NPA proposes to apply safety management systems (SMS) to Part-145 approved maintenance organizations, and to production and design organizations approved under Subparts G and J of Part 21.  It introduces elements of SMS into each set of regulations, but also makes a number of other changes in each, as well.

The proposed repair station SMS rules are published in section C of the NPA.  Many of the changes to EASA Part 145 appear to reflect terminology and cosmetic changes to make the existing regulations better reflect the terminology of SMS.  Some language from the CAMO regulations has been adopted for the repair station regulations.  There would be new regulations for airworthiness review staff.  Some changes are meant to better address risks posed by personnel fatigue and by external working teams.  Some of the oversight mechanisms (EASA Part 145.B) have been changed, and this will likely have indirect effects on the operations of repair stations.  There are also proposed changes to record-keeping requirements.  There are also significant changes to the occurrence reporting systems for repair stations.

Most distributors will be pleased to know that EASA 145.A.42 – which governs the documentation required for parts – will not change under this proposed rule.

Once the regulations go into force, existing EASA 145 organizations will have two years to modify their systems in order to comply with the new regulations.  This will likely have delayed effect on US-based EASA 145 organizations, because those organizations are required to comply with US regulations and the additional special conditions (as described in the Maintenance Annex, and also consistent with the implementation guidance in the Maintenance Annex Guidance); but the change in the EASA regulations could lead to a subsequent change in the special conditions.

The proposed manufacturer SMS rules are published in section B of the NPA.

Changes include an expansion of mandatory reporting system to require collection, investigation and analysis of all voluntary reports, in addition to mandatory reports.  It would expand the system to include requirements for reporting and managing internal errors and other hazards that do not fall under the traditional failures, malfunctions, defects and adverse effects occurrences that have been reported in the past.  While it is clearly meant well, this change could have the unintended effect of inhibiting voluntary reports, because of the new collection, investigation and analysis burden associated with these voluntary reports.

The new regulation would also impose on the production approval holder a duplicative collection, investigation, analysis and reporting obligation (currently the burden belongs to the design approval holder).

The reports made to the competent authority will also need to safeguard the identity of the reporter, which could inhibit subsequent investigation by the competent authority.

The new regulations will feature expanded record-keeping requirements and also a requirement for arrangements (like contractual requirements) that make all “partners, supplier and subcontractors” open to competent authority investigations.  This could mean that US suppliers to Airbus, for example would need to permit EASA investigators free access to audit or investigate at any time.

This is not a complete list of all of the proposed changes – it is worthwhile for anyone in the aviation industry to review these changes carefully as they may have wide-ranging effects.  There are also draft Acceptable Means of Compliance (AMC) and Guidance Material (GM) for each Part in the NPA.

The public is permitted to submit comments using the automated Comment-Response Tool (CRT).  The deadline for comments on this NPA is July 17, 2019.

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FAA Publishes SMS Rule

Tomorrow (January 8), the FAA will publish its SMS final rule for air carriers.

The industry has been waiting several years for this rule.  In fact, Congress mandated this air carrier SMS rule in 2010, with a final rule date not later than August 1, 2012.

Scope

The new rule applies to part 121 carriers, and requires them to submit an implementation plan to the FAA for review no later than September 9, 2015.  The implementation plan must be approved no later than March 9, 2016.  The plan must be fully implemented not later than March 9, 2018.

The FAA has estimated that the 90 domestic Part 121 air carriers will spend about 82 million dollars implementing and running SMS programs over the next ten years.  But these estimates are based on a man-power analysis that seems a little light.  Compliance with FAA requirements often takes more effort than what the FAA is estimating in its cost-benefit analysis.

This regulation should serve as a template for later SMS rules for manufacturers and repair stations.  An ICAO Standard and Recommended Practice (SARP) requires SMS regulations to be applied against air carriers, manufacturers and repair stations.  Many discussions of those rules have centered around reliance on the same Part 5 SMS rule that serves as the core of this rulemaking activity.

Recordkeeping

There are significant new record-keeping requirements in this rule.  The FAA is required to get OMB approval before it can impose new record-keeping requirements.  The rulemaking preamble admits that the OMB approval has not yet been issued, but promises to publish the OMB approval number when (if) it is issued.  The industry should keep careful watch on this – it has happened in the past that the FAA has sought to enforce record-keeping requirements before the OMB approval number was issued (or in the absence of such an approval number).  If the OMB approval number is not published by the time the implementation plans are due (in September) then air carriers may want to submit implementation plans without recordkeeping components.

The new records that must be created and maintained by air carriers will include:

  • records of outputs of safety risk management processes
  • records of outputs of safety assurance processes
  • records of all training

In addition, air carriers will be required to develop and maintain communication mechanisms that accomplish the following, and records of all of these communications must also be maintained:

  • Ensure that employees are aware of the SMS policies, processes, and tools that are relevant totheir responsibilities
  • Convey hazard information relevant to each employee’s responsibilities
  • Explains why each safety action has been taken (the FAA has not defined this term, “safety action,” but preambulatory language suggests that any reactive or proactive action taken to enhance safety may meet this description, so this could include each piloting decision, each dispatch decision, and even the decision to purchase a part from one vendor instead of another vendor)
  • Explain why each safety procedure is introduced or changed
  • Explain the reason for each safety procedure change

How Might This Affect Distribution?

A lot of the specifics about SMS are left open to interpretation. As a consequence, it is impossible to predict with any accuracy what sort of data requests will be directed from air carriers to their distributors. But it is not absurd to believe that some air carriers may impose data requirements on distributors in order to support their safety risk and safety assurance obligations.

On the other hand, this might be good for aircraft parts distribution. If air carriers are required to justify their safety decisions, and this extends to parts procurement decision, then a decision to purchase from an accredited distributor is justifiable, based on the FAA’s determination that such purchase is a sound safety practice (not to mention the FAA audit of the AC 00-56 program which found the program to be effective).

Comments Filed at Home and Abroad

ASA continues to work diligently to promote and promote and protect its members’ interests both at home and abroad. In the past month ASA has filed comments on a proposed rule change by NASA, as well as a Notice of Proposed Amendment with EASA.

On June 17, ASA filed comments with NASA regarding the proposed definition of “counterfeit goods” detailed in the proposed “NASA FAR Supplement Regulatory Review No. 1.”  The issue of counterfeit goods in aerospace and received a significant amount of attention in recent years.  As we have explained previously, efforts by Congress and the Administration to curtail the presence of counterfeit parts in the supply chain has the potential to impose significant burdens on distributors.

One way to mitigate that burden is to ensure that everyone has a clear understanding of what is—and more importantly, what is not—a counterfeit good.  ASA is working hard on multiple fronts to ensure that the definition of a counterfeit part remains concise, narrow, and legally accurate, to avoid imposing unnecessary and unhelpful burdens on the industry.

ASA also offered comments on EASA’s recent Part 145 NPA.  The objective of the sweeping NPA is to incorporate SMS principles into Part 145, and the proposed changes have the potential to touch not only repair stations, but also distributors and manufacturers.  ASA made numerous suggestions related to the various proposals in the hopes of assisting EASA in order to assist in a more gradual incorporation of these changes, as well as to address proposals that appeared to fall outside the scope of SMS.

ASA looks forward to working with these agencies to craft regulations that promote safety and benefit the industry.

 

Setting the Paradigms for Global Aviation Safety

Have you ever wondered how the different aviation authorities (FAA, EASA, TCCA, etc.) coordinate their efforts?  It seems like they are constantly developing new rules and standards – new rules and standards that at any time could threaten to upset the entire aviation system by imposing standards that might impede international commerce in a way that undermines aviation safety rather than supporting it.

Well, one way that the different aviation authorities coordinate their efforts is by meeting at an annual Aviation Safety Conference.

Today, EASA issued an updated agenda for the 2013 EASA / FAA International Aviation Safety Conference. The Conference is the annual meeting among EASA, FAA, TCCA and other regulators to discuss new paradigms in regulatory oversight. The new paradigms that are discussed ultimately form the basis for future regulatory efforts.  This meeting directly impacts the aviation industry, which is the subject of the regulatory oversight that is being discussed!

The updated Conference agenda provides better guidance on what to expect from the 2013 meeting.

Sessions that may be interesting to ASA members will include:

  • New Technology: A Challenge for Regulators
  • Safety Management and Global Harmonisation
  • Safety Continuum: Regional flexibility vs Global Harmonization?
  • Performance Based Oversight
  • Rulemaking Cooperation: towards a Regulatory Framework Based on Safety Oversight Data
  • The New Normal: Strategies for Safety Success in Fiscally Challenging Times
  • Compliance Assurance
  • Global Production: The New Reality

Each of these paradigms could support safety or it could impede commerce in a way that undermines safety, such as by preventing needed replacement parts from arriving at their destination.  By understanding the philosophical aims of the regulatory process, ASA is in a better position to influence the regulations to meet the expected safety goals while at the same time supporting global aviation commerce and making safe aircraft parts available to everyone who needs them.  This is especially important for the distribution community, because the unregulated nature of aircraft parts distribution – the fact that it is not a certificated function – causes it to be sometimes forgotten in the regulatory development process.

ASA will be at this Safety Conference and we will be reporting on the new directions proposed by the regulators.

European SMS Proposal Will Likely Affect Distributors

An EASA safety management proposal has become a vehicle for a long list of changes to the EASA regulations – changes that could impact aircraft parts distributors all over the world.

EASA has issued a Notice of Proposed Amendment (NPA) that would integrate Safety Management Systems (SMS) into Part 145 maintenance organizations.  This NPA would represent a significant change to the language of Part 145.  The introduction to the rule change is 42 pages long, and the actual rule change is 142 pages long(!)  This rulemaking document is accompanied by a sister document that modifies Part M (continuing airworthiness organizations) and also a third  document that provides an explanation as well as a regulatory impact statement.  That is a total of 432 pages of rulemaking documentation for the integration of SMS into the EASA maintenance and continuing airworthiness regulations.

Despite the length (or perhaps because of it), the rule will bear attention by everyone in the aircraft parts distribution community.  In addition to integration of the traditional SMS elements, some of the areas where there are changes being made that will likely affect aircraft parts distributors include:

  • Standard parts
  • Raw materials and consumable parts
  • Traceability
  • Packaging requirements for parts and labeling requirements for the packaging
  • Control and disposition of unserviceable components
  • Return of data plates and serial numbers (for mutilated parts) to manufacturers

The proposal also appears to impose on Part 145 certain continuing airworthiness obligations that are traditionally delegated to Part M organizations.

EASA has asked for comments using the automated Comment-Response Tool (CRT).   The deadline for submission of comments is April 22, 2013.

References:

House Aviation Hearing Focuses on Safety Management

The House of Representatives held a hearing this week on aviation safety issues; a significant focus of this hearing was on Safety Management Systems (SMS).  Both the private sector and the FAA testified about the importance of SMS.

FAA Associate Administrator Peggy Gilligan testified about the FAA’s progress on Safety Management Systems (SMS) implementation.  Congress passed a law requiring the FAA to implement SMS rules for air carriers.  Gilligan explained that the FAA has met its statutory deadlines for proposed SMS rule and that they are on track to be able to use SMS as a holistic tool that will allow industry and the FAA to spot safety trends, and to use these trends to be able to identify potential safety issues and correct them before they can lead to an accident or incident.

Tom Hendricks, the Vice President for Safety, Security and Operations at Airlines for America (formerly the Air Transport Association) agreed about the importance of the data-driven culture that SMS formalizes.  He expressed that data driven analysis of SMS “yields a high definition picture” that permits more refined risk assessments.  He explained that air carriers have been using data-based programs to identify emerging patterns and promptly deploy focused resources; by proactively initiating change in response to data, rather than reacting to accidents, air carriers have been able to take a disciplined approach that has significantly advanced safety.

Data is at the heart of SMS, and the most effective way to handle SMS is through data sharing, which permits air carriers to have a larger pool of data from which to draw safety conclusions.  Scott Foose, the Senior Vice President of Operations and Safety at the Regional Airline Association (RAA) testified before Congress about RAA’s efforts to support data sharing.

“When it comes to sharing of safety information, regardless of the size of the fleet or the name on the aircraft, our goal is that all airlines will work together as a team, which will improve safety overall for the industry and most importantly, for our employees and passengers.”

To this end, RAA members have been participating in several data sharing programs that allow individual air carriers to have a much richer data set on which to rely in order to identify trends that can foreshadow safety issues.

While data is an important driver for SMS, it also creates the potential for the data to be misused.  At the opening meeting of the FAA’s SMS Aviation Rulemaking Committee (ARC), we raised this important issue and the final report from the SMS ARC included draft legislation that we had prepared that would protect SMS data from being disclosed to anyone that might use it for purposes other than safety.  The reason that this data protection is important is because if the data can be used for other purposes, like litigation, or embarrassing companies in the press, then this will tend to have a chilling effect on honest reporting.  If the data is not reported honestly (even when honesty is unpopular or embarrassing), then it may not serve its safety purpose.

The subject of data protection was a major part of the testimony of Sean Cassidy, the First Vice President of the Air Line Pilots Association:

“Processes in place to protect the data gathered through various [means] need to be strengthened and expanded to provide proper protection for the data, both within and outside an organization.  Legislation should be considered to further strengthen the protection of this vital source of safety information against misuse.”

Data protection is not the only challenge facing FAA and industry in establishing SMS programs for air carriers.  Gerald Dillingham of the Government Accountability Office (GAO) testified before Congress about the data challenges facing the FAA in developing the system necessary to support SMS.  These include:

  • Changes to reporting policies that could result in changes to data that reflect changes in reporting trends rather than actual changes in the safety issues that are represented by the data
  • Incomplete data at make it difficult to account for all appropriate risks
  • Lack of coordination among data systems that makes it difficult to correlate data
  • Data reliability question, and
  • Lack of data on certain types of incidents

Dillingham applauded the FAA for its efforts, but expressed that more work needs to be done to address the challenges that his organization has identified.

Similar shortcomings were identified in the testimony of Jeffrey Guzzetti, the Assistant Inspector General for Aviation and Special Programs from the Department of Transportation’s Office of the Inspector General.  Guzzetti explained that the FAA has had problems collecting data, and optimally using the data that it does collect.  For example, he notes:

“FAA has not finalized the process to effectively communicate [Air Traffic Safety Action Program] ATSAP data to facility managers so that safety improvements can be made at the facility level. FAA has also not effectively communicated and implemented changes to performance management under ATSAP, including assignment of skill enhancement training to controllers. Improvements in these areas would enhance the Agency’s ability to identify and address risks through the use of ATSAP.”

One of the areas that Guzzetti focused on was better use of data for oversight of repair stations.  He explained that some FAA employees are simply not using the risk-based tools that headquarters has been providing, and others are going through the motions of using them but they seem to be ignoring the results.  He concluded that “to address root causes of safety problems and fully measure their impact, FAA needs to fine-tune its approach to how it collects, verifies, and uses safety data.”

How Will EASA SMS Rules Affect DIstributors?

The European Aviation Safety Agency (EASA) has formally begun the process of implementing Safety Management System (SMS) regulations.  Because past practice has been for certificate holders to “flow-down” a portion of their regulatory obligations to distributors, SMS and the manner in which it is implemented internationally remains an important issue for distributors.

EASA issued the Terms of Reference (TOR) for task number MDM.055 on July 18, 2011. This task anticipates the creation of adequate rules and guidance material to permit EASA to implement a set of SMS rules.

The Terms of Reference do not specifically explain to whom the SMS rules created under this project would apply – they merely mention some of the parties to whom ICAO has recommended apply it. This is a more important omission than some people may understand, and it provides EASA with the ability to dynamically change the scope of application as necessary during the course of the rulemaking project without amending the TOR. Under current ICAO recommendations, SMS should apply to air carriers, repair stations, manufacturers and airports. In the United States, the FAA made the decision to create two different SMS rules – one for airports, and then a second one for air carriers that is intended to be later applied to repair stations and manufacturers. EASA has said that it is amending COMMISSION REGULATION (EC) No 2042/2003 of 20 November 2003. This regulation applies to design and production organizations as well as maintenance organizations (but not to air carriers). EASA is clearly leaving itself open to any reasonable implementation strategy.

The final shape of SMS rules in EASA will be important to distributors who do business with both Europe and other parts of the world, because the data requirements of SMS could lead to reporting requirements from distributors to their SMS-compliant customers.

EASA intends for the internal EASA task group to do the following , as part of this task:

  • Review the existing rules and advisory guidance;
  • Adopt provisions for application for, and processing of, alternative means of compliance, to support standardization;
  • Implement management systems requirements to support compliance with the relevant ICAO standards on SMS;
  • Implement in the SMS standards new guidance on human factors for maintenance;

This SMS project will be worked internally within EASA, although EASA has reserved to itself the right to call informal meetings with industry or National Aviation Authorities for additional feedback. This internal project mechanism is consistent with the process recently used by Japan to create its SMS rules for repair stations (they offered the proposed rules for notice and comment but did not otherwise seek input from the international community). It is different from the FAA’s approach in the United States … the FAA formed an Aviation Rulemaking Committee (ARC) made up of industry and FAA and took advice from the ARC on how to formulate the air carrier SMS rules.

EASA has a very aggressive timetable set for the SMS project. They expect to issue a Notice of Proposed Amendment (NPA) to seek public comment in the second quarter of 2012.

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