in late March issued long-anticipated policy crafted to help ensure design approval holders (DAHs) required to provide instructions for continued airworthiness (ICA) are following the intent of FAA's rules on making information available to repair stations and others that need it.
The policy statement, “Type Design Approval Holder Inappropriate Restrictions on the Use and Availability of Instructions for Continued Airworthiness,” is meant to take on what FAA dubbed DAH efforts to “inappropriately restrict the availability, distribution or use” of ICA through restrictive language, use or access agreements.
The policy makes clear that several DAH practices aimed at restricting ICA distribution are “not appropriate.”
For instance, DAHs cannot restrict ICA usage between a product's owner/operator and a maintenance provider, regardless of whether the provider is rated to do the work. “A maintenance provider that is not rated, or is seeking the appropriate FAA rating to perform maintenance on the owner/operator's products, may obtain ICA from the owner/operator,” FAA said.
FAA also attempted to tackle restrictive language efforts by listing four examples of practices that it considers prohibited under FAR 21.50(b):
•Requiring the owner/operator to only install DAH-produced or authorized replacement parts, articles, appliances or materials.
•Requiring that alterations or repairs must be provided or otherwise authorized by the DAH.
•Requiring the use of only maintenance providers or other persons authorized by the DAH to implement the ICA.
•Establishing, or attempting to establish, any restriction on the owner/operator to disclose or provide the ICA to persons authorized by the FAA to implement the ICA.
“While a DAH must identify the applicability of its ICA, the FAA will not accept restrictive statements or terms in ICA documents, or restrictive access or use agreements that limit the appropriate availability or use of the ICA where the FAA has determined the ICA are acceptable for maintaining a DAH's product with FAA-approved replacement parts, articles, or materials installed (e.g., parts manufacturer approval (PMA) items),” FAA explained. The agency also acknowledged that the list of sample restriction efforts is “not exhaustive,” clarifying in its comments disposition document that the four examples “are what we currently consider as legally enforceable per the advice of our legal counsel.”
The draft policy, released for public scrutiny in October 2011, generated 43 pages of comments—or 40 more than were needed for the final policy itself.
Among notable disagreements,felt that FAA's restrictive-language examples “could be understood to require the DAH to consider/approve the use of third-party parts or repairs in the ICAs.” FAA clarified that while DAHs can't restrict ICA usage to limitations such as using only DAH-provided parts, DAHs can recommend certain replacement parts, or suggest that they be consulted on repairs or alterations.
Several commenters, including Airlines for America and Chromalloy, called on FAA to detail potential enforcement procedures for violators. However, FAA made it clear that the policy's purpose is about clarification, not enforcement. “This policy statement does not intend to address or change the process for enforcement,” FAA explained in the comment disposition document.
While many in the maintenance community see the policy as a step in the right direction for clarifying what DAHs can and can't do regarding ICA, the document does not represent a quantum leap from where things stood before.
“Contrary to the claims of some, this policy does not mean that the FAA will change the way that it approaches ICA,” Modification and Replacement Parts Association (Marpa) President Jason Dickstein wrote in a blog post discussing the new policy. “[T]he policy guidance really just reiterates that ICAs must be made available to the parties that rely on them for safety compliance, and contract provisions that undermine that safety regime will be considered unacceptable.”
Still, Marpa and many others embraced the policy., “as a holder of type certificates, amended type certificates and supplemental type certificates,” said it “concurs” with FAA's policy, and helpfully noted that “our ICA processes and business practices comply” with it.
Others, like cargo operator Amerifight, used the public comment process to relate some of its ICA-related challenges.
“Ameriflight has struggled over the years to gain access to needed documentation related to Instructions for Continued Airworthiness,” the company said. “In many cases, production approval holders . . . have forced the use of their chosen repair and overhaul facilities who, in turn, charge excessive costs both in labor and in parts. Even after repeated requests they have—on a 'proprietary document' basis—refused access to their manuals and refused to assist in reliability and other product improvement studies. . . . Bringing these practices to a halt, and providing operators this flexibility, certainly is in the public interest. We strongly recommend and support this policy.”
FAA's response: “Thank you for your comment.” —Sean Broderick
|Original Projected Publication Date||Last Projected Publication Date||Current Projected Publication Date||Latest Action|
|Air carrier maintenance training NPRM||6/1/11||6/18/13||6/18/13||Returned tofor 2nd review/December|
|Repair stations NPRM||11/29/10||8/24/12||???||Disappeared from report 4/1|
|FAA’s air carrier maintenance training program NPRM, which would require maintenance training programs for air carriers that operate aircraft with at least 10 passenger seats, remains in the agency’s hands undergoing a second review. Meanwhile, the repair station NPRM disappeared from DOT’s rulemaking report altogether. An FAA spokesperson confirmed the move and said the rule was “in queue” for publishing. Its last reported target dates were a May delivery to OMB for review and an August publication date, so an early April disappearance from DOT’s report seems a tad premature. We’ll pass along any updates we get.|