The New UK: What Does Brexit mean for US-UK Aircraft Parts Transactions?

December 3, 2020 by Leave a comment

Many companies rely on UK-based manufacturers and repair stations. What happens to these companies after the end of the Brexit transition on December 31?

Yesterday, we laid out the legal underpinnings of Brexit (as they apply to aircraft parts transactions) and if you haven’t already read that post, then you should take a look at it as background for today’s post.

Installation of New Parts Produced in the UK on US-Registered Aircraft (and other third-country nations)

Until the end of the transition period (after December 31, 2020), the UK continues to benefit from the laws and agreements of the EU. This means that United States acceptance of UK-produced parts is subject to normal rules that apply to all EU-US transactions, and to resolve conflicts we should look to the existing US-EU BASA and the FAA-EASA IPA. Thus, nothing has appreciably changed, yet.

This same rule applies to other nations. Their existing agreements with the EU continue to apply to UK transactions until the end of the transition period (after December 31, 2020).

After the end of the transition period, starting January 1, 2021, new parts produced under UK production approval and imported into the United States aviation system will be subject to the US-UK bilateral agreement. The Implementation Procedures for Airworthiness (“IPA”) between the US FAA and UK CAA can be found here. As you can see, that IPA is substantially similar to the comparable FAA-EASA Technical Implementation Procedures. The reason for this is to make the transition as smooth as possible, so we can continue with “business as usual.”

One minor difference is that UK CAA producers will issue UK CAA Form 1 instead of EASA Form 1 after the end of the transition period.

Another minor difference worth mentioning is found in the definition of the term “article” in the US-UK IPA, which explains that the US definition includes a material, part, component, process or appliance, while the UK definition is limited to a component, part or appliance. Unless you are dealing in materials or processes that have been treated as articles in the United States, this distinction should not be a concern for most transactions (note that the FAA-EASA TIP relies on the FAA definition of “article”).

As discussed in yesterday’s post, the UK CAA has also signed comparable agreements with Canada and Japan.

Note that many UK-based manufacturers are seeking EASA Part 21 approvals. EASA maintains a list of these certificate holders on their website. These manufacturers will receive their EASA Part 21 credentials at the end of the transition period (after December 31, 2020); and they will be able to continue issuing EASA Form 1 for their articles.

These entities will be considered to be EASA certificate holders by the EU and it is likely that the FAA will continue to treat them as subject to the US-EU agreements, but there are some minor changes that may be necessary in the US-EU agreements to properly implement this situation [like changing the scope language that applies to “articles … eligible for import to the U.S. from EASA and each EU member state” which will need to be broadened to include imports from third country states where the producer is subject to an EASA POA].

Installation of Parts Maintained by a UK Part 145 MRO on US-Registered Aircraft

As with new parts, during the transition period (through December 31, 2020), the laws and agreements of the EU continue to apply to the UK, and thus the United States accepts parts maintained under US FAA certificates in the UK and released on an EASA Form 1 that denotes dual-release (under EASA 145 and FAA 145).

As with new parts, nothing has appreciably changed, yet. In this situation, the date that matters is the date of the maintenance release, and that date will need to be assessed to identify whether the release was signed before or after the end of the transition period

For work that was released by a UK-based repair station (holding FAA approval, as well), after December 31, 2020, the legal basis for installation on a US-registered aircraft may depend on the nature fo the certificates held by the MRO. Some MROs will continue to hold the same UK CAA 145 and US FAA 145 certificates that they have always held. The work of these MROs will be subject to the Maintenance Implementation Procedures (MIP) between the US FAA and the UK CAA. But many other MROs in the UK will obtain EASA 145 certification as a third country MRO. This will mean that they (typically) hold UK, US and EU approvals. The list of those UK repair stations who have applied for EASA Part 145 approval can be found on the EASA website. These repair stations will receive their EASA Part 145 credentials at the end of the transition period (after December 31, 2020).

Where the work of the work of the MRO is subject to the Maintenance Implementation Procedures (MIP) between the US FAA and the UK CAA (e.g. the MRO has UK CAA 145 and FAA 145 approvals, but not an EASA 145 approval), such work will no longer be released on an EASA Form 1. Instead it will be released on an UK CAA Form 1. As with the other form, if it is a dual-release then the remarks block will indicate that the work is performed under FAA regulations if the work is intended to be acceptable in the United States.

There is also a clause in the US-UK MIP that permits holders of FAA Part 145 privileges in the UK to release work on a single-release 8130-3 tag (this would only certify approval for return to service for US FAA regulatory purposes, but it would be acceptable in the US market).

What About EU-registered aircraft?

EU-registered aircraft are a more complicated matter, and we will deal with those in the next post.

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The New UK: What Does Brexit mean for Aviation?

December 2, 2020 by 1 Comment

Part One: Brexit’s Legal Landscape Affecting Aviation

Everyone knows that the UK left the EU earlier this year, and that the UK and EU have been in the Withdrawal transition period since January 31. The Withdrawal period is governed by the Withdrawal Agreement signed by the UK and the EU last year. The last day of the current transition period is scheduled to be December 31, 2020. Part of the rationale behind the nearly-one-year-long transition period was to permit the UK and EU to negotiate a trade agreement that would reflect their long-term relationship.

There is little time for the UK and EU to complete negotiations. The negotiation were already very difficult due to the differing opinion on political issues like the Irish border; those negotiations have been hampered as each deals with the issues surrounding Covid-19. Trade deal negotiations restarted this past weekend, but it may be too little, too late. It is looking like there may not be an agreement by December 31 – most particularly not an agreement that permits the UK CAA to remain as a part of EASA.

So what does this mean for the aircraft parts market? First let’s examine some of the general agreements and basic principals that are likely to affect aircraft parts transactions (in the next article, we will examine some more specific scenarios and rules).

Generally speaking, a nation remains responsible for the airworthiness of the aircraft on its national registry. This means that an aircraft on the German registry can be maintained under the EU (EASA) regulations, and the rules about what parts can be installed on that aircraft are gong to be the EU rules. The EU has entered into agreements with other authorities to share certain oversight duties; for example, new parts produced under US FAA certificates/approvals are typically legal to install on EU aircraft when they meet the terms of the agreements between the EU and the US. But the EU does not have a comparable agreement with Mexico, so an aircraft parts produced under production approval issued by the Mexican DGAC would not be directly accepted into the EU system (note that EASA has a working arrangement that permits Mexico to validate and/or accept certain EASA certificates and approvals).

Through the EU (Withdrawal) Act 2018, all European Union aviation laws were adopted into UK law upon Brexit (deferred to the end of the transition period).  This means that the same EASA regulations under which the UK has been operating will continue to apply to UK transactions, but new EU regulations will no longer apply directly to the UK after the end of the transition period.

Because the UK is withdrawing completely from the EASA system as of January 1, 2021, the UK CAA will undertake all of the aviation safety regulatory functions. UK CAA has been preparing for this for years, and they appear to be ready.

The UK will no longer be included in EU-level Bilateral Aviation Safety Agreements. New UK agreements have already been negotiated and will come into effect on January 1, 2021. These agreements will be substantially the same as the correlative agreements between the ‘third-country’ and the EU. These include agreements with the following ‘third countries:’

Until and unless something changes in the EU law or in the negotiations between UK and EU, there appears to be no agreement between the EU and the UK for aviation approvals and certificates.

The EU promulgated a regulation (Regulation (EU) 2019/494 (25 March 2019)) that permitted recognition of certain documents, like copies of Form 1, during a continuing transition period; however that recognition did not come into effect because Article 10(3) explains that the regulation will not come into effect if a withdrawal agreement is signed before Brexit. Such a Withdrawal Agreement entered into force in 2019. This means that the primary EU legal authority permitting acceptance of approvals issued in the UK before January 1, 2021 did not come into effect. This does not mean that the EU cannot accept any new or maintained aircraft parts from the UK – there is an important exception that may apply from Article 41 of the Withdrawal Agreement – and we will address this important exception in our next blog article.

In the next blog post, we will look more specifically about how all of this affects aircraft parts transactions.

#aviation #brexit

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

January 31, 2020 by Leave a comment

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.

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PMA Parts Exported to Europe

January 6, 2016 by Leave a comment

An ASA member asked for information about how to export, to the EU, subcomponents of PMA components. This sort of question arises when the PMA-ed component is made up of subcomponents and there may be a market for the individual subcomponents, such as when they are required as replacement parts.[1]  It is important to bear in mind that FAA regulations require that when any component parts, or replacement articles, of the PMA article leaves the PMA manufacturer’s facility as ‘FAA approved,’ then that component part or replacement article must be identified with (a) the manufacturer’s part number and (b) the manufacturer’s name, trademark, symbol, or other FAA approved manufacturer’s identification. This identification may be something other than a marking where the design approved by the FAA does not include a marking requirements for that subcomponent.

Generally speaking, EASA 145 organizations may accept PMA replacement and modification parts[2] when accompanied by an FAA Form 8130-3 with appropriate certifying statements.[3] The appropriate certifying statements are described in the Technical Implementation Procedures (TIP).

The TIP explain that EASA directly accepts PMA approvals without further showing, for modification and/or replacement parts intended to be installed on EASA-certified/validated products.[4] Additional requirements that apply to PMAs exported from the US to the EU are also described in the TIP.

Subcomponents of PMA parts would be included as replacement or modification parts produced under a PMA approval, so the EASA acceptance of the PMA approval would be sufficient to permit import into EASA of the subcomponents, as long as they meet the other requirements for PMA parts.

In all cases of PMA parts and their subcomponents, the part must fit into one of these three categories:

  • The PMA part is not a critical component.[5] The vast majority of PMA parts are not critical components.
  • The PMA part is a critical component and it conforms to design data obtained under a licensing agreement from the TC or STC holder;[6] or
  • The PMA part is a critical component and the PMA holder holds an EASA STC that incorporates the PMA part.[7]

Parts are required to be accompanied by an FAA-signed 8130-3 tag.[8] The remarks block of the 8130-3 tag should[9] be annotated with language that reflects the category into which the part falls:

  • If the PMA part is not a critical component, then the text should state: “This PMA part is not a critical component.”[10] Remember, the vast majority of PMA parts are not critical components.
  • If the PMA part is a critical component and it conforms to design data obtained under a licensing agreement from the TC or STC holder, then the text should state: “Produced under licensing agreement from the holder of [INSERT TC or STC NUMBER].”[11]
  • If the PMA part is a critical component and the PMA holder holds an EASA STC that incorporates the PMA part, then the text should state: “Produced by the holder of the EASA STC number [INSERT THE FULL REFERENCE OF THE EASA STC INCORPORATING THE PMA]”;[12] or

The word used repeatedly in association with the remarks block annotation is “should” and not “shall.” The permissive “should” is used in both the header language[13] and the subparagraphs identifying the specific recommended text.[14] Typically, required items are described with the imperative “shall”[15] while the term “should” typically describes recommended actions that are not required. As a practical matter; however, European customers often treat this TIP language as if the “shoulds” were mandatory and not merely permissive.

Subcomponents of PMA parts generally ought to follow the same documentation rules as the complete PMA parts, because the FAA approval basis for the subcomponents is still the PMA. Thus, there should be some marking on the 8130-3 tag that is consistent with the design approval holder’s designation. Again, most PMA parts are non-critical and the subcomponents of those parts will also be non-critical.

A very small amount of PMA parts are critical. If the subcomponent is also a critical component, then the language about licensing agreement or the language about an EASA STC number should be included on the 8130-3 tag.

In those very rare cases where the PMA is a critical component but the subcomponent replacement part is not a critical component, there is some ambiguity about how to categorize the part for purposes of identifying the remark-block annotation. When exporting such non-critical PMA subcomponents to the EU, it is unclear whether the annotation should be based on the classification of the PMA itself, because the documentation required by category is based on “the PMA part” (and it is unclear from the text whether this means the top-level assembly or the subcomponent).[16] The most reasonable interpretation of this language is that when the subcomponent itself is not a critical component, then the non-critical language should be used on the 8130-3 tag; however because of the vagueness in the existing language, there is room for the FAA and/or EASA to interpret this position in a different way in the future.

In most cases, though, subcomponents will belong to non-critical PMA parts, so their categorization will remain non-critical at the subcomponent level.

There is one additional documentation requirement for subcomponents of PMA articles; FAA Order 8130.21H explains that the remarks block must reference the fact that the article is a subcomponent of a PMA part:

“When used for an export for a new subcomponent of a PMA/TSO authorization article higher assembly, complete FAA Form 8130-3 with the subcomponent information, and enter a statement in Block 12 indicating the part or article is a subcomponent of a PMA or TSO authorization (for example, “This part is a subcomponent of a PMA/TSO authorization”). (Refer to appendix A, figure A-15, to this order.)”[17]

The parts must be appropriately marked.[18] This means marked in accordance with the TIP.[19] The TIP requires all replacement and modification parts to be marked in accordance with EASA Part 21; however EASA Part 21 does not intend that all parts be marked. The requirements that are applicable to PMA parts are those that apply to all replacement and modification parts, which is that they are marked in the in a manner identified by the applicable design data.[20] Guidance material clarifies EASA’s intent with respect to this provision by explaining that

“It is not the intent of 21.A.804(a)(1) to introduce an obligation for a production organization (manufacturer) to mark new parts or appliances with information which is not identified by the design approval holder. Therefore, the physical marking of parts and appliances is only required when established by the design approval (TC, STC, ETSO, repair, change) holder.”[21]

PMA parts are specifically exempt from the EPA marking requirement;[22] but they are required to be marked in accordance with their approved designs. This means that so long as the complete PMA part is marked in accordance with FAA-approved design requirements, the fact that the subcomponent does not bear the marking (because the marking should be elsewhere) is not a bar to export of the part from the US to the EU. This is consistent with rules that apply to parts manufactured under production certificates, where those parts do not need to be specifically marked unless they are required to be marked according to the approved design.

[1] The PMA holder is permitted to Identify any portion of the PMA article (e.g., sub-assemblies, component parts, or replacement articles) that leave the manufacturer’s facility as FAA approved, so these subcomponents are approved parts. 14 C.F.R. § 21.316(e).

[2] The term “replacement and modification parts” is interpreted as it is used in the Technical Implementation Procedures (TIP).

[3] Agreement between the United States of America and the European Union on Cooperation in the Regulation of Civil Aviation Safety, Annex 1, page CE/USA/Annex 1/Appendix/en 44 (English Version).

[4] Technical Implementation Procedures for Airworthiness and Environmental Certification, para. 2.8.2(a) (rev. 5; Sept 15, 2015).

[5] Id. at para. 2.8.2(a)(1). For PMAs, a critical component is “a part identified as critical … by the exporting authority.” These are parts for which a replacement time, inspection interval, or related limit was specified in the Airworthiness Limitations Section of the Instructions for Continued Airworthiness. Id. at para. 1.6(i). Among those that are, the limitation that makes it critical will be tied to the PMA design approval.

[6] Id. at para. 2.8.2(a)(2)

[7] Id. at para. 2.8.2(a)(3); see also id. at para. 2.8.2(b) (describing the process for obtaining EASA STC).

[8] Note that the language of section 5.1.10(a) suggests that PAH 8130-3 tags, issued in accordance with 21.137(o), would not be acceptable for export to the EU because they are not signed by the FAA and therefore fail to reflect an FAA certification.

[9] The text uses the permissive phrasing “one or more of the following statements should be written in the remarks block”

[10] Technical Implementation Procedures for Airworthiness and Environmental Certification, at para. 5.1.10(b)(1)(i).

[11] Id. at para. 5.1.10(b)(1)(iii).

[12] Id. at para. 5.1.10(b)(1)(ii).

[13] Id. at para. 5.1.10(b)(1).

[14] Id. at para. 5.1.10(b)(1)(i, ii, and iii).

[15] E.g. 14 C.F.R. § 1.3(b)(1) which explains that in the FAA’s regulations, “Shall is used in an imperative sense.”

[16] E.g. Technical Implementation Procedures for Airworthiness and Environmental Certification at para. 5.1.10(b)(1).

[17] Procedures for Completion and Use of the Authorized Release Certificate, FAA Form 8130-3, Airworthiness Approval Tag, FAA Order 8130.21H, para. 4-5(l)(6) (Aug 1, 2013).

[18] Agreement between the United States of America and the European Union on Cooperation in the Regulation of Civil Aviation Safety, Annex 1, paragraph 3.5.2(d), page CE/USA/Annex 1/en 14 (English Version).

[19] Technical Implementation Procedures for Airworthiness and Environmental Certification, para. 5.1.10(a)(3) (rev. 5; Sept 15, 2015) (requiring marking); see also id. at para. 5.5.2(a) (explaining the marking requirements).

[20] EASA 21.A.804(a).

[21] EASA GM 21.A.804(a)(1) (Identification of parts and appliances).

[22] Agreement between the United States of America and the European Union on Cooperation in the Regulation of Civil Aviation Safety, Annex 1, paragraph 3.5.7, page CE/USA/Annex 1/en 15 (English Version).

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Major Changes Involving 8130-3 Tags

December 18, 2015 by 2 Comments

Any ASA member who has attended an ASA Board Meeting or an ASA Quality Assurance Committee meeting in the past three months knows that an important topic of discussion has been the recent FAA and EASA changes affecting 8130-3 tags.

Two significant changes in the regulations and policy have affected 8130-3s this Fall.  Both have the potential to impact the business models of distributors.  This post analyzes the two sets of changes and provides guidance for aircraft parts distributors who may be impacted by those changes.

International Agreements

The first significant change was published in the latest revision to the Maintenance Annex Guidance (revision 5). The United States has a Bilateral Airworthiness Safety Agreement (BASA) with the European Union (EU). The EU-BASA explains how the United States and the European Union will share safety duties and permit products and articles to be freely moved between jurisdictions.

The EU-BASA is interpreted by several guidance documents. One of those guidance documents is the Maintenance Annex Guidance (MAG). The MAG explains how the US and EU will share oversight of repair stations that hold authority from both jurisdictions. Under the MAG, repair stations in the US that hold EASA 145 acceptance will be subject to oversight by the FAA, and the FAA will assess compliance to both the US and the EU regulatory requirements.

In order to facilitate compliance to both standards, the MAG includes two sample supplements for the repair station manual (for US-based repair stations) or the Maintenance Organization Exposition (for EU-based repair stations). Repair stations are expected to adopt such supplements in order to ensure that their work will meet the requirements of both jurisdictions; however they are expected to be able to make changes to the sample supplement; in fact the guidance explains that:

“The applicant must customise [sic] the supplement to reflect the specific repair station operation and related procedures.”

Although the supplements are explicitly described as “samples,“ experience has shown that many FAA employees treat these samples as the only acceptable language (this was most recently re-confirmed by repair station personnel at the ASA Quality Assurance Committee Meeting in Dallas who continue to experience this phenomenon).  This is not a new phenomenon – many complaints were raised when the FAA had an advisory circular that featured sample language for the repair station’s Inspection Procedures Manual (IPM) – and ultimately the FAA found it necessary to cancel the IPM AC because safety inspectors were requiring adherence to the sample as if it were a legal requirement.  The net result in cases like this is that the “samples” become de facto regulations, because they are being enforced as if they were required by regulation. I won’t get into all of the Federal laws that are being violated when the FAA enforces a domestic record-keeping requirement that imposes new regulatory standards not previously found in US law.

With the Supplement “samples” being treated as if they were requirements, we find a number of requirements being imposed that are not required under US law, and a few that are not required under either US law or EU law (thus making MAG rev. 5 a source of brand new quasi-legal obligations).

The most significant elements for distributors are found in the MAG rev. 5 requirements for acceptance of new parts.  The language that applies to US based repair stations (who need the supplement to retain their EASA privileges) includes this text:

New components must be traceable to the OEM as specified in the Type Certificate (TC) holder’s Parts Catalogue and be in a satisfactory condition for installation. A release document issued by the OEM or Production Certificate (PC) holder must accompany the new component. The release document must clearly state that it is issued under the approval of the relevant AA under whose regulatory control the OEM or PC holder works.

The acceptance language that applies to standard parts provides an exception for those parts, but PMA parts enjoy no such exception which means that independent PMA parts (which are typically are not included in the type certificate holder’s parts catalogue) appear to be unacceptable (violating EASA standards and conflicting with the existing Technical Implementation Procedures).

More importantly, all new components will have to be accompanied by a “release document issued by the OEM or Production Certificate (PC) holder.”  Today, most 8130-3 tags are issued by the FAA (usually through its designees).  This provision would cause the rejection of existing FAA 8130-3 tags because they were not issued by the OEM or Production Certificate holder (instead, until now, they have always been issued by the FAA, directly or through designees).  This could have a tremendous impact on existing inventories, which would not meet the acceptance requirements described in the supplement even if they were accompanied by 8130-3 tags issued by the FAA.

The FAA and EASA have agreed to delay the implementation of MAG rev. 5 until March 29, 2016.  This was meant to permit time for manufacturers to start issuing 8130-3 tags for new parts.

8130-3 Tag Regulations

Under the new regulations, a production approval holder (PAH) will be permitted to issue its own 8130-3 tags. These tags will be known as “authorized release documents.”  This privilege will be permissive and not mandatory, so some manufacturers may choose not to issue authorized release documents.  The FAA has issued guidance that says that once a production approval holder has set up a system for issuing authorized release documents, the production approval holder will be required to surrender its ODA privileges or other designated privileges that permit issuance of an FAA 8130-3 tag.  Thus, for manufacturers, the choice of issuing 8130-3 tags under the manufacturer’s own authority or obtaining them through designees will be an ‘either-or’ choice, without the opportunity to use both systems.

The FAA implies that these documents can be used for export purposes, by explaining that when an authorized release document is issued for export purposes, the production approval holder must follow the procedures specified in § 21.331 and must comply with the responsibilities of exporters specified in § 21.335.  One of the many problems with these authorized release documents is that although they appear to now be potentially acceptable for European repair stations, our bilateral agreement with the rest of the world all require FAA-issued 8130-3 export tags.  So manufacturer’s authorized release documents would not meet the requirements of our other bilateral agreements.  In addition, the BASA Technical Implementation Procedures (TIP) with the EU anticipates that EASA can expect FAA-issued 8130-3 tags (it repeatedly uses language explaining that the FAA must certify facts on the 8130-3 tag, such as in section 5.1.6(a)(1) for TSOAed articles).

On December 17, the FAA published a correction to the final rule that explained that PAHs are permitted to start issuing 8130-3 tags as early as January 4, 2016. This is specifically intended to permit PAHs to issue 8130-3 tags to support the new requirements for 8130-3 tags that are needed for domestic repair stations that possess EASA privileges (the preamble to the rule specifically mentions MAG rev. 5 as a motivating factor for the correction).

There are already manufacturers who rely on their own certificates of conformity and do not obtain 8130-3 tags for domestic transactions.  We have spoken with manufacturers who are not sure whether they will begin issuing 8130-3 tags because of some of the problems and limits associated with the PAH-authorized release document policy; so distributors may be unable to obtain PAH authorized release documents for some parts; and will likely have extreme difficulties obtaining PAH authorized release documents for existing inventory.

How Big of an Issue is this in the United States?

According to EASA, there are 1474  valid repair stations in the US with EASA privileges (EASA Table dated Nov. 12, 2015 – this does not include ‘not valid’ and invalid EASA repair station approvals in the US).  This is about one-third of the domestic US repair stations; but as a practical matter, it is nearly all of the US repair stations that service commercial aircraft customers.  This means that most repair stations that purchase parts from ASA members will be affected by the MAG rev. 5 requirements.  Because it is easier for FAA employees to simply enforce the MAG rev. 5 sample as if it were a requirement, we should expect most of these repair stations to adopt supplements that are consistent with the language of MAG rev. 5.  This will have a very significant affect on the business of aircraft parts distribution.

What Does This Mean for Distributors?

Distributors should expect to have problems selling aircraft parts without 8130-3 tags after March 31, 2016.  This could result in devalued inventory as a consequence of the FAA’s actions (There are months yet to go before this implementation date so ASA can do little to predict, today, what the actual devaluation will be).

The authorities (FAA and EASA) have agreed that for parts released by production approval holders before April 1, 2016, those parts will not be expected to be accompanied by 8130-3 tags.  The fact that an aircraft part produced by a PAH is in a distributor’s inventory as of that date is prima facie evidence that the part was released by the production approval holder before that date.  This means that aircraft parts in a distributors inventory as of close of business on March 31, 2016 or start of business on April 1, 2016 are grandfathered from the provisions of MAG rev. 5 (although, of course, parts intended to be used on European-registered aircraft will be expected to meet the requirements of the BASA TIP).  Distributors may wish to find a way in their inventory database systems to identify all parts held as of COB March 31, 2016 in order to be able to certify that the part was released by the production approval holder before April 1, 2016.

What Can You Do to Make Things Better?

1) Communicate with your repair station customers and ask them to ensure that their EASA Supplements permit them to accept parts without 8130-3 tags (e.g. parts with a manufacturer C of C) consistent with US policy in documents like FAA AC 00-56B.  Nothing in either US or EU law should prevent them from being able to receive a demonstrably airworthy part in new condition under their FAA 145 privileges and then issuing a single release certificate for their domestic U.S. customers.

2) Communicate with your repair station customers and ask them to ensure that their EASA Supplements are consistent with EASA regulations instead of using the MAG rev. 5 language, which adds limits that are not required under EASA regulations;

3) Communicate with your repair station customers and ask them to ensure that their EASA Supplements accept all 8130-3 tags that are acceptable by European 145s under the BASA Technical Implementation Procedures;

4) Communicate with your manufacturer business partners and encourage them to release their parts with 8130- 3 tags;

5) To the greatest extent possible, obtain 8130-3 tags for parts.  Even though they are not required by law in the US, the FAA is going to impel repair stations to reject parts that do not have 8130-3 tags, which will make the 8130-3 tag a de facto requirement for selling to repair stations.

6) Share your thoughts!  ASA is eager to hear your thoughts about potential problems and solutions.

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Mutual Acceptance of European and US TSOA Components is on the Horizon

July 1, 2015 by Leave a comment

The US and Europe are investigating how to accomplish mutual acceptance of TSOAs and ETSOAs. This could be a huge advance for the aviation community, that could save both industry and government resources.  It also would be great for US parts distributors handling TSOA articles, because it would make it easier to sell these articles into both markets.

The current US-EU Bilateral Airworthiness Safety Agreement (BASA) Technical Implementation Procedures (TIP) allows the FAA and EASA to each issue a TSOA/ETSOA in reliance on certain assurances by the other authority, following certain validation processes by the second authority.  The way that it works is that an authorization holder on one side of the Atlantic applies through its own airworthiness authority for the corollary approval on the other side of the Atlantic.  The application is reviewed by the first airworthiness authority and then forwarded to the second authority for validation.  Once the validation is granted, the article would be marked for both approvals.

But what if you didn’t need two approvals and two markings?  What if you could get one authorization from one authority and it was good for sales into both jurisdictions (US and EU)?

The authorities have announced a plan to mutually accept technical standard order articles from the other jurisdiction. Under this plan the validation process would no longer be necessary (saving both applicant and authority resources). This is a sign that the FAA and EASA have progressed to a point of mutual trust in the TSO authorization process.

The mutual acceptance will not happen overnight. It is part of a lengthy process that began with TSO-ETSO harmonization, and that has involved significant coordination among the authorities. But once it is complete it means that receiving inspectors and installers will have to get used to the idea that approved TSO parts are coming from both the US and Europe, without the intermediate step of validation.

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Language on the 8130-3 Tag: “This PMA part is not a critical component”

July 30, 2014 by Leave a comment

An ASA member recently asked whether a DAR would be permitted to write “This PMA part is not a critical component,” on the domestic 8130-3 tag for a PMA component.

Many of you will recognize this as the language requested by the EU on export 8130-3 tags that accompany FAA-PMA parts that are not critical components.

Does this sort of language have value in a domestic 8130-3 tag?  It might.  When a Maintenance DAR (DAR-T) produces an export 8130-3 tag for a non-critical PMA part that is destined for an EU member nation, the DAR-T may add language verifying that the PMA part is not a critical component.  The DAR-T may need some basis to make this non-critical decision, though.

The determination of whether a PMA part is critical is made by the design approval holder (the FAA-PMA holder) and confirmed as part of the FAA approval.  See Order 8130.21H Section 4.4(c).  The PMA holder is thus in a prime position to inform the first DAR to issue an 8130-3 tag about whether the part is critical.  Adding the language “This PMA part is not a critical component,” on the domestic 8130-3 tag may support efficient issue of future export tags for the same article, when a later decision to export is made.

Is it permissible for the designee at the manufacturer’s facility to place this PMA “criticality statement” on the domestic 8130-3 tags that accompany the PMA parts?  Yes, because it is not prohibited.

Manufacturers typically rely on designees to issue its 8130-3 tags (such as a DMIR, DAR, or an organizational delegation known as an ODA). Each designee is required to follow the instructions in Order 8130.21 (latest revision, which is currently the “H” revision).

Originally, industry requested the “domestic 8130-3 tag” as a work-around to circumvent outdated rules that prevented anyone other than a manufacturer from requesting an export 8130-3 tag for a (“class III”) aircraft part. These outdated rules were impeding US exports and undermining safety (because the 8130-3 tag is used to distinguish known airworthy parts).  I know this history because I proposed the “domestic 8130-3 tag” to the FAA as just this sort of work-around, after FAA management explained that they could not modify the regulations in a timely fashion to support exporters.  As time went one, this tag quickly began to serve other uses (including documenting actual domestic shipments) and the FAA ultimately revised the regulations to permit any exporter to apply for an export 8130-3 tag for an aircraft part (which eliminated the original NEED for the tag as a work-around).

Critical Components and the EU Bilateral

The PMA “criticality statement” is something that is requested under the technical implementation procedures (TIPs) that accompany the US-EU bilateral aviation safety agreement (BASA). It is not intrinsically necessary for domestic shipments.

Under the US-EU TIP, a “Critical Component” is defined as:

“a part identified as critical by the design approval holder during the product type validation process, or otherwise by the exporting authority. Typically, such components include parts for which a replacement time, inspection interval, or related procedure is specified in the Airworthiness Limitations section or certification maintenance requirements of the manufacturer’s maintenance manual or Instructions for Continued Airworthiness.”

The TIP directs that PMA parts being exported from the United States to the European Union bear appropriate language in block 12 (the remarks block). For a PMA part which is not a critical component, the remarks block of the 8130-3 should state:

“This PMA part is not a critical component.”

But if the PMA part is a critical component, then there are two options for the language in the remarks block. In the first option, if the PMA holder also holds an EASA STC design approval which incorporates the PMA part into an EASA certified or validated product, then the language should say:

“Produced by the holder of the EASA STC number [INSERT THE FULL REFERENCE OF THE EASA STC INCORPORATING THE PMA].”

In the second option, if the PMA holder holds a licensing agreement from the TC or STC holder (giving the PMA holder the rights to use the TC/STC design for the PMA parts), then the
following statement should be written in the remarks block:

“Produced under licensing agreement from the holder of [INSERT TC or STC NUMBER].”

These are the only two options for exporting FAA-PMA critical components from the US to the EU.

Who Determines Whether a Component is Critical?

Section 4.4(c) of Order 8130.21H states that “The determination of a PMA article’s criticality, as required to be entered in Block 12 when exported, can only be determined by the actual design approval holder (that is, the FAA-PMA holder).” This is important language because certain parties (foreign governments and competitors) have attempted to gainsay the FAA-approved “critical part” decisions of the FAA-PMA holders. But this language is not meant to prevent a designee issuing an export 8130-3 tag from making a PMA “criticality statement” on the 8130-3 tag that is consistent with the determination of the design approval holder. Thus, any subsequent designee issuing an export 8130-3 tag for an FAA-PMA part may rely on the design approval holder’s determination as to whether the PMA part is a critical component.

Can We Place this Language in Block 12?

Block 12 is a free-form remarks block. The specific instructions of the block are that the block should state any information “necessary for the user or installer to determine the airworthiness of the product or article.” There is a list of examples in the FAA guidance, but this list is not exclusive. A replacement time, inspection interval, or related procedure specified in the Airworthiness Limitations section would certainly be necessary information, and the fact that there is no such limit (e.g. that the part is not critical) could likewise be useful to the installer. Thus, there seems to be no legal bar to adding this language to block 12 in a domestic 8130-3 tag (e.g. “This PMA part is not a critical component.”). When such text is added to the first domestic 8130-3 tag that is generated at the production approval holder’s facility, this would seem to be useful information that is preserved to support subsequent DARs who might later produce export airworthiness tags, which reflects additional value in the use of this language on a domestic 8130-3 tag.

Note that the language we are discussing, “This PMA part is not a critical component,” is not required language on a domestic tag.  Therefore, addition of this language to block 12 would be at the discretion of the designee, who is creating this tag.  Thus, the designee would be within his or her rights to refuse to add this specific text to a domestic 8130-3 tag, to the same extent that he or she would be permitted to do so. It is simply a matter of discretion.

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