Unapproved Parts Notice – Rescinded

Recently, we provided an update on our progress with the FAA concerning a recent Unapproved Parts Notice (UPN) known as UPN 2018-2017-0001120.  We had concerns about the basis for the issue of that UPN, which appeared to be contrary to law.

The FAA has formally rescinded that UPN.  They recognized that the UPN was not necessary, because each of the parts had been shown to be “traceable to a PAH, traceable to an approved design by which an airworthiness determination can be made, or quarantined.”  This pronouncement did not give us the clear statement concerning traceability policy for which we were hoping, but it does mean that ASA members do not have to search their inventories for these parts.

The formal rescission can be found here: Rescind Notice – 2018 Genesis UPN 2018-2017-0001120

 

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FAA Publishes UPN Against Cessna Aileron Cables

In what is likely the last UPN of 2014, the FAA has published an Unapproved Parts Notice addressing certain Cessna Aircraft Model 560XLS Aileron Cables.

The UPN alleges that Cessna sold these cables as good parts, but that the FAA’s investigation has revealed that they do not meet the FAA approved type design.  The UPN does not explain how the articles fail to meet type design.

The affected articles are those Aileron Cables identified as part number 6660002-14 and marked with Cessna production work order number 23449052.

The FAA has not issued an airworthiness directive, and it is unclear whether one will be issued.  But in the past, the FAA has decided that other aileron cable issues did not warrant an airworthiness directive.

Nonetheless, distributors with these parts in their inventory have been advised by the FAA to quarantine them to prevent installation until a determination can be made regarding their origin and eligibility for installation.

The UPN originated in the Wichita FSDO.  Questions about it can be directed there at telephone number (316) 946-4179.

Unapproved Parts Notice (UPN) Issued Against Barrel Nuts, P/N NAS577B7A

The FAA has issued a new Unapproved Parts Notice (UPN) concerning Barrel Nuts, part number NAS577B7A produced by Alcoa Fastening Systems.  The UPN applies only to Batch Numbers 5334992-000, M004187-000 and 5323292-000.

The FAA issued an emergency airworthiness directive in July to the owners and operators of Embraer EMB-500 aircraft; this was issued in response to a Brazilian airworthiness directive.  The Brazilian airworthiness directive was issued in order to promote the detection and correction of cracking in the barrel nuts.  Crackig had been detected at the horizontal stabilizer-to-vertical stabilizer attachment joint.

The emergency AD was not sent to distributors who might have had these parts in their inventories, so a follow-up AD was published in the Federal Register in August.  Because UPNs are typically aimed at products and not parts, an UPN was issued today to ensure that the remainder of the aviation community received notice about these parts.

The UPN advises companies to perform a close visual inspection for surface irregularities, such as gouges or cracks, before installing these nuts on an aircraft.  It advises the industry to quarantine suspect parts until conformity to the manufacturing standard can be verified.  The UPN notes that some non-conformities may not be visible during visual inspection, so companies should use their quality acceptance criteria to help identify parts that must be subject to additional scrutiny.

Unapproved Parts Notice: GE engine controls (FADEC), part number 4120TOOP12DT

Yesterday, the FAA released an Unapproved Parts Notice (UPN) concerning two FADEC units that were allegedly not produced under production approval.

The two units are experimental aircraft engine controls, and the UPN claims they are manufactured by the General Electric Company (the non-experimental version of the FADEC is manufactured by a vendor to GE).  They are identified by part number 4120T00P12DT, and by serial numbers LMDL0123 and LMDL0145.  According to the UPN, the two units were produced without Federal Aviation Administration (FAA) production approval.  The UPN does not explain how the units were released.  The 4120T00P12 (without the DT) can be used on certain CF34-8 engines.

The FAA has recommended that is these FADEC units are found in existing inventory, then the FAA would like them to be quarantined to prevent installation until a determination can be made regarding the origin and eligibility for installation.  The FAA has asked for anyone discovering these units to report them to the FAA:

Federal Aviation Administration
Vandalia Manufacturing Inspection District Office (MIDO)
303 Corporate Center Drive, Suite 312, Vandalia, OH 45377
Phone number: 937-898-3991
FAX number: 937-898-8717

The UPN is available online at http://www.faa.gov/aircraft/safety/programs/sups/upn/media/2014/UPN_2014-20130611002.pdf.

ASA Wins Traceability Case

This week, ASA won an important victory in court for its members.  We used the court system to remove language from FAA Guidance that could have adversely affected the industry.

Recently, FAA published an Unapproved Parts Notice (UPN).  This is not unusual.  But what was unusual was a statement in the UPN that appeared to impose a new traceability requirement on distributors.

The UPN was published by the Scottsdale (Arizona) (Manufacturing Inspection District Office and it stated, in relevant part:

“A distributor (seller) is required to provide sufficient documentation to ensure traceability of their parts to an FAA-approved source.” [hereinafter the “legally incorrect language”]

LEGALLY INCORRECT

This statement misstated the law.  There is no FAA requirement for traceability.  The FAA Chief Counsel’s office has repeatedly stated this in numerous Chief Counsel’s opinion letters.[1]

Furthermore, no record-keeping requirement may be imposed by an agency without an OMB Control Number.[2]  Because the FAA has no requirement for traceability, the FAA has never applied for an OMB control number for a traceability requirement.  Thus, the FAA has not met the legal prerequisites for imposing such a traceability requirement.

Most importantly for our members, the FAA has not defined uniform traceability requirements for aircraft parts.  They have made traceability recommendations in the Voluntary Industry Distributor Accreditation Program of AC 00-56A, but even these recommendations fall short of the requirement established in the UPN.  Because there is no uniform traceability standard, an FAA pronouncement of a requirement for “sufficient documentation to ensure traceability of parts to an FAA-approved source” would create real problems for the industry,, as there are still many (new) legacy parts in inventories that do not have this sort of documentation because it was never required or anticipated when the parts were first manufactured.

This misstatement of the law could have a very real effect on the industry.  Many people in the industry have been wrongly told by FAA employees and others that the FAA has a traceability requirement.  The fact that the Chief Counsel’s office has repeatedly had to state that there is no such requirement[3] gives testament to the persistent recurrence of this issue.

ASA made it clear to the FAA that we do not represent Classic Aero LLC and have no relationship to Classic Aero LCC (the target of the UPN).  Our sole interest was in correcting the text that misstated the law.

The UPN specifically called out parts distributors as an affected party; and it also directed the industry to comply with the recommendations and provide the FAA with additional information concerning the referenced parts,[4] including the means used to identify the source and the action taken to remove them from service.

REQUEST FOR CORRECTION

We asked the FAA to rescind the UPN and reissue it without the legally incorrect language.  We pointed out that removing the legally incorrect language about traceability would do nothing to change the emphasis of the UPN, but it would remove an apparent order to provide documentation that was inconsistent with US law.

Unfortunately, a trade association like ASA Only has a 60 day window to appeal an order of the FAA.  The FAA was unable to provide ASA with a constructive reply within this window so we sued the FAA.

LAWSUIT

ASA filed suit against the FAA on the 60th day of its window.  The ASA Board agreed that this language set a dangerous precedent and imposed a documentation requirement that the industry could not uniformly and conclusively meet for all aircraft parts.

Soon after the suit was filed, we got a phone call from FAA Attorney Richard Saltzman.  Saltzman had done his homework and in his first call he reported that he had discussed the matter with the FAA’s subject matter experts.  And they agreed with ASA.

Not long after this, the FAA issued a replacement UPN that omitted the legally incorrect language.  ASA then rescinded its lawsuit, having gotten what we’d requested.

This is the way we like to win a case: prove to the FAA that there is a better way; and then work together to find a solution that works best for the industry.


[1] E.g. FAA Legal Interpretation Letter from Rebecca B. McPherson Assistant Chief Counsel for Regulations (July 8, 2009) (“the regulations do not require “back to birth” records in order to determine the life status of life-limited parts”); FAA Legal Interpretation Letter from Rebecca B. McPherson Assistant Chief Counsel for Regulations (Aug. 6, 2009) (“there is no Federal Aviation regulation that requires traceability of an aircraft part to its origin”); FAA Chief Counsel’s Interpretation 1992-36 (June 1, 1992) (explaining that “[a] complete audit trail to the origin is not needed for all life-limited parts”).

[2] See, 44 U.S.C. §3512 (preventing the imposition of a penalty for failure to comply with an information collection when the information collection does not comply with the requirement to display a current OMB control number); see also United States v. Hatch, 919 F.2d 1394 (1990) (finding that the Paperwork Reduction Act defense could be raised at any time in a proceding); cf. 5 C.F.R. 1320.5(c) (preventing an agency from imposing a penalty for failure to comply with a collection of information when the public is otherwise protected, as when the agency has failed to comply with the requirement to secure an OMB control number).

[3] See supra note 1.

[4] Coincidentally, this request also appears to be inconsistent with the Paperwork Reduction Act, in that it neither includes an OMB Control Number nor does it advise the respondent that compliance is voluntary.

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