ASA Opposes Government Penalties on Unintentional Mistakes, Because the Penalties Would Discourage Correction

April 5, 2024 by Leave a comment

FAA has issued a Notice of Proposed Rulemaking (NPRM) on False Statements. The rule proposes to merge all of the FAA’s false statements rules into two locations (Part 3 and a new Part 402). It also proposed some new standards that would apply to unintentional mistakes and to omissions.

ASA filed comments in response to the NPRM today. The comments made recommendations about how to make the NPRM a stronger proposal.

In summary:

  • ASA supported the efforts to standardize and harmonize the false statements rules.
  • ASA opposed a proposal to create a strict liability offense for unintentional mistakes in documents, because it conflicts with the FAA’s just culture environment and it could have the unintended consequence of discouraging correction of such errors.
  • ASA opposed a proposal to penalize certain omissions, because of the lack of specificity about what reflects a material fact that might be omitted (especially in the specific context of the 8130-3 tag) and because the omissions provision appears to violate the Paperwork Reduction Act.
  • ASA also recommended word changes to strengthen the proposal by better aligning it with existing regulations and statutes.

You can find ASA’s comments online.

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FAA Publishes SMS Rule for Manufacturers and an Expanded List of Operators

January 10, 2023 by Leave a comment

Distributors may soon see some changes in their aviation manufacturers as well as their operator-customers, as the FAA will publish its Safety Management Systems (“SMS”) Notice of Proposed Rulemaking (“NPRM”) in tomorrow’s Federal Register.

This long-awaited proposed rule has been scaled back from the original scope (manufactures and maintenance organizations) and only appears to apply to:

  • Passenger-carrying operations (including those under 14 C.F.R. § 91.147, Part 121 and Part 135)
  • Type Certificate (TC) holders whose TCs are under production
  • Production Certificate holders

There will be an exception for production certificates that are based purely on a supplemental type certificate (STC), and not on any type certificate.

The proposal would also make many small changes to the existing Part 5 (SMS) standards.

The NPRM is published pursant to the Congressionally-mandated obligation for aviation manufacturers to establish SMS programs (Public Law 116-260 (Dec. 27, 2020)). That law required application of SMS requirements to “manufacturers that hold both a type certificate and a production certificate issued pursuant to section 44704 of title 49, United States Code, where the United States is the State of Design and State of Manufacture.” Id. at § 102(a)(1). So it applies to those who produce aircraft, engines and propellers, but on its face it does not apply to those who produce aircraft parts (which are typically produced under PMA or TSOA). Because it also applies to operators, ASA members may eventually feel that they are squeezed between two sets of business partners who are under SMS regulations.

The proposed rule would require SMS-holders to share hazard information with the relevant interfacing entities who, to the best of their knowledge, could address the hazard. An example in the NPRM has an aircraft manufacturer disseminating hazard information to its parts suppliers and software suppliers. Distributors should be wary of this provision, as it could ultimately mean that distributors may face a flow-down of SMS requirement from their business partners.

Because we anticipate such SMS-related commercial pressures on our members, as well as anticipating members who may want to voluntarily adopt SMS, ASA continues to monitor implementation of SMS programs around the world.

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ASA Files Repair Station Comments to Protect Members

November 19, 2012 by Leave a comment

ASA has filed comments in response to the FAA Notice of Proposed Rulemaking concerning repair stations and their ratings.  Although the ratings proposal was the centerpiece of this proposed rule, many of the proposals that caused the most concern were those unrelated to the ratings element of the proposal.

This is a proposed rule that could have a significant effect on the ASA Community.  Some of the regulatory proposals, for example, could interfere with documentation and traceability norms.

Issues addressed by the wide-ranging comments from ASA included:
<ul>
<li>Recertification</li>
<li>Certificate Surrender</li>
<li>Asset Sale</li>
<li>Ratings</li>
<li>Capabilities Lists in the Operations Specifications</li>
<li>Removing Operations Specifications from the Certificate</li>
<li>Capabilities Lists</li>
<li>Quality Systems</li>
<li>Appropriate Equipment and Tools</li>
<li>Permanent Blacklisting From the Industry under § 1051(e)</li>
<li>Entitlement to Certificate under § 1053(a)</li>
<li>Change to Part 43 Appendix B</li>
</ul>
A complete set of the ASA Comments will soon be posted to the <a title=”ASA Website” href=”http://www.aviationsuppliers.org&#8221; target=”_blank”>ASA website</a>.

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

July 17, 2012 by Leave a comment

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

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

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

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

§ 145.1211 Quality control system.

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

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

The proposed rule can be found at: http://www.gpo.gov/fdsys/pkg/FR-2012-05-21/pdf/2012-11984.pdf

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