ICA Breakout Session - Aeronautical Repair Station Association...

ICA Breakout Session

ICA Breakout Session Marshall S. Filler, ARSA Managing Director & General Counsel

March 21, 2014


Legal Fine Print

Disclaimer: This material is provided for educational and informational purposes only. It does not constitute legal, consulting, tax or any other type of professional advice. Law, regulations, guidance and government policies change frequently. While ARSA updates this material, we do not guarantee its accuracy. In addition, the application of this material to a particular situation is always dependent on the facts and circumstances involved. The use of this material is therefore at your own risk.

3/21/14 Copyright © 2014 Aeronautical Repair Station Association 703 739 9543 • www.arsa.org

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14 CFR §21.50(b)

The holder of a design approval, including either the type certificate or supplemental type certificate for an aircraft, aircraft engine, or propeller for which application was made after January 28, 1981, must furnish at least one set of complete Instructions for Continued Airworthiness to the owner of each type aircraft, aircraft engine, or propeller upon its delivery, or upon issuance of the first standard airworthiness certificate for the affected aircraft, whichever occurs later.

* * * * *


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14 CFR §21.50(b)

• Thereafter, the holder of a design approval must

make those instructions available to any other person required by this chapter to comply with any of the terms of those instructions.

• In addition, changes to the Instructions for Continued Airworthiness shall be made available to any person required by this chapter to comply with any of those instructions.


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14 CFR §21.1

Applicability and definitions • * * * * *

(b) For the purposes of this part— • * * * * *

(4) Design approval means a type certificate (including amended and supplemental type certificates) or the approved design under a PMA, TSO authorization, letter of TSO design approval, or other approved design; Note: Differences under EASA rules


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14 CFR part 25, appendix H H25.1 General.

(a) This appendix specifies requirements for preparation of Instructions for Continued Airworthiness as required by §§ 25.1529, 25.1729, and applicable provisions of parts 21 and 26 of this chapter. (b) The Instructions for Continued Airworthiness for each airplane must include the Instructions for Continued Airworthiness for each engine and propeller (hereinafter designated “products”), for each appliance required by this chapter, and any required information relating to the interface of those appliances and products with the airplane.


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14 CFR part 25, appendix H H25.1 General.

(b- cont’d) If Instructions for Continued Airworthiness are not supplied by the manufacturer of an appliance or product installed in the airplane, the Instructions for Continued Airworthiness for the airplane must include the information essential to the continued airworthiness of the airplane. (c) The applicant must submit to the FAA a program to show how changes to the Instructions for Continued Airworthiness made by the applicant or by the manufacturers or products and appliances installed in the airplane will be distributed.

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14 CFR part 33, appendix A (a) Engine Maintenance Manual or Section.

• * * * * * (6) Scheduling information for each part of the engine that provides the recommended periods at which it should be cleaned, inspected, adjusted, tested, and lubricated, and the degree of inspection the applicable wear tolerances, and work recommended at these periods. However, the applicant may refer to an accessory, instrument, or equipment manufacturer as the source of this information if the applicant shows that the item has an exceptionally high degree of complexity requiring specialized maintenance techniques, test equipment, or expertise. The recommended overhaul periods and necessary cross references to the Airworthiness Limitations section of the manual must also be included. In addition, the applicant must include an inspection program that includes the frequency and extent of the inspections necessary to provide for the continued airworthiness of the engine.


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14 CFR part 33, appendix A

(b) Engine Overhaul Manual or Section * * * * *

(4) Details of repair methods for worn or otherwise substandard parts and components along with the information necessary to determine when replacement is necessary.


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14 CFR § 43.13(a) Performance Rules

(a) Each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in § 43.16. He shall use the tools, equipment, and test apparatus necessary to assure completion of the work in accordance with accepted industry practices. If special equipment or test apparatus is recommended by the manufacturer involved, he must use that equipment or apparatus or its equivalent acceptable to the Administrator.


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§ 145.109 Equipment, materials, and data requirements

(a) Except as otherwise prescribed by the FAA, a certificated repair station must have the equipment, tools, and materials necessary to perform the maintenance, preventive maintenance, or alterations under its repair station certificate and operations specifications in accordance with part 43. The equipment, tools, and material must be located on the premises and under the repair station's control when the work is being done.


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§ 145.109 Equipment, materials, and data requirements

(d) A certificated repair station must maintain, in a format acceptable to the FAA, the documents and data required for the performance of maintenance, preventive maintenance, or alterations under its repair station certificate and operations specifications in accordance with part 43. The following documents and data must be current and accessible when the relevant work is being done:

(1) Airworthiness directives, (2) Instructions for continued airworthiness, (3) Maintenance manuals, (4) Overhaul manuals, (5) Standard practice manuals, (6) Service bulletins, and (7) Other applicable data acceptable to or approved by the FAA.


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A rose by any other name …

• Component Maintenance/Overhaul Manuals • Are they ICA?

o Why do we care? o Is remove and replace good enough?

• Access o Who is “entitled” to obtain them? o How much should they cost? o Under what terms and conditions?

• How much information should they include? o Basic maintenance information essential to continued

airworthiness? o Source-approved proprietary repairs?


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ARSA’s Objectives

• To ensure that basic safety information (i.e., ICAs) is

developed by all design approval holders (not just TC holders).

• To ensure that ICAs are made available at a fair and reasonable price to- o Operators o Maintenance providers o Any other person required to comply with those

instructions.


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ARSA is Not Asking for …

• Proprietary data not “essential to continued

airworthiness” • No-cost ICAs • A free pass for maintenance providers who

develop their own major repairs • Unrestricted use of ICAs


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ICAs: An Essential Link in the Safety Chain

• FAA Interfaces

o Aircraft Certification: design and manufacturing (policy is that CMMs are not usually part of the ICAs)

o Flight Standards: operations and maintenance (rules require maintenance providers to have the CMMs and follow them when they do the work)

• ICAs are essential to continued airworthiness. They establish standardized basic maintenance requirements.


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Recognizing the Importance of ICAs

• Regulatory o Section 21.50(b) o Airworthiness standards and ICA appendices o Technical Standard Orders

• FAA and NTSB enforcement decisions • Industry

o ATA specifications for manuals o Customer support agreements


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Recognizing the Importance of ICAs

• FAA Guidance o Order 8110.54 – a double standard (product ICAs vs.

component “ICAs”) o Engines and propellers (AC 33.4-1 and AC 35.4-1) o PMA (Order 8110.42) o TSO (Order 8150.1 – may be subject to §21.50(b)) o Major repairs and alterations (Order 8900.1) o Shared safety responsibility: 70 FR 40166, 7/12/2005

• NTSB Accident Investigations o Alaska Airlines o Emery Worldwide Airlines


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FAA ICA Policy PS-AIR-21.50-01, March 29, 2012

• FAA stated that the following restrictions were

contrary to§21.50(b) -- o Requiring the owner/operator to only install DAH-produced

or authorized replacement parts, articles, appliances, or materials.

o Requiring that alterations or repairs must be provided or otherwise authorized by the DAH.

o Requiring the use of only maintenance providers or other persons authorized by the DAH to implement the ICA.

o 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.


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FAA ICA Policy PS-AIR-21.50-01, March 29, 2012

• Why did ARSA oppose this policy? o Unanswered: what is essential to the continued

airworthiness of the product? o Enforceability – FAA inspectors to review contracts? o Did not recognize legitimate DAH rights to control

how the data is made available o No discussion regarding the primacy of operator

maintenance programs – focused on §21.50(b) § 121.369 § 145.205


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ICA Legal Interpretation

• In 2009 ARSA asked the FAA to issue an interpretation that component maintenance manuals (CMM) referenced in the Airworthiness Limitations section of the ICA were part of the ICA.

• On August 17, 2012 the FAA finally responded. o CMMs referenced in the ALS are part of the ICA; o Modifications to the ALS are changes in type design that trigger § 21.50(b) requirements; o Therefore, they must be made available to properly rated repair

stations with a need to comply with those requirements (e.g., possession of component, contract, work order).

o Important language regarding price and “make available”


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SAIB NE-08-40 August 8, 2008

• Title: Powerplant – Original Type and Production

Certificate Holder Parts and Aftermarket Modification and Replacement Parts

• Recognizes the commercial tension among product OEMs, operators and holders of alternate approved parts such as STC parts and PMAs.

• Acknowledges language in TC holder ICAs “limiting use” to OEM parts or policies that OEMs may not support their products with alternate parts installed.


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SAIB NE-08-40 August 8, 2008

• Alternate approved parts are interchangeable with

OEM parts • Unless otherwise specified TC holder life limits are

unaffected. • STC/PMA applicants requires an ICA evaluation

and/or creation of supplemental ICAs • All approval holders are responsible for continued

operational safety of their products and parts


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• Regulatory o ICA rules and related guidance o Anti-trust (i.e., DOJ, FTC)

• Contract law o Airlines that agree to OEM terms are

generally bound by those agreements. o Exception: Clauses that are contrary to

public policy are unenforceable • Private anti-trust litigation

Competition Issues: Legal Boxes

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• Airlines are increasingly concerned about certain OEM practices that --

• Limit their choices of MRO provider • Create barriers to using non-OEM maintenance

providers, DER repairs and PMA parts. • Affects spare parts, maintenance manuals, tooling

and test equipment • Government-sponsored “monopolies” • Rules provide flexibility for use of equivalent items;

however, the burden of demonstrating equivalence is on the user.

Competition Issues



• Differential OEM pricing policies between airlines working on their own fleet vs. those acting as a third party MRO and independent MROs.

• Exclusive use contracts with OEM (e.g., power by the hour maintenance contracts)

• Shrinking content of OEM maintenance manuals • Refusal to repair or install any LLP operated in an

engine that included non-OEM approved DER repairs or PMA parts (i.e., LLP critical influencing parts).

Competitive Practices



Competitive Practices

• Refusing to make manuals available under any circumstances o Products o Components

• Exorbitant price increases – when is a manual constructively unavailable?

• Prohibiting use of PMA parts and DER repairs • Prohibiting air carriers from flowing down necessary

maintenance information to contract providers


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Recent NAA Efforts • EASA started the ball rolling – it had very good

intentions but … • Got bogged down in intra-agency coordination • Status

o March 10, 2012 report issued by EASA Rulemaking Director (Task MDM.56)

o Identified the key issues and work in progress

• Defined ICA to include parts and appliances -- o Based on appendices in the airworthiness standards o But left it up to the TC holder to develop or reference the

applicable manuals to show compliance with the airworthiness standards (today’s policy)


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Recent NAA Efforts

• DAHs = TC and STC holders • CMMs are not usually considered ICAs. • Consequently, unless referenced in the TCH ICAs

there is no regulatory requirement that they be created, or

• If created … that they be reviewed by the NAA or made available to maintenance providers.


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Issues of Common NAA Interest

• Definition of ICA • Availability of ICA • Completeness of ICA (during certification process) • Level of involvement of the certificating authority • Scheduling information (MRB process) • Validation process • Review/acceptance of ICA by other than the authority

(i.e., DOA for EASA, ODA for FAA)


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CMMs: Not of Common Interest

EASA position: The regulator should control some CMMs based on the criticality of the information.

o ALS/CDCCL items? o What if the information is wrong? o What if the information is changed by

maintenance providers?


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CMMs: Not of Common Interest

FAA/TCCA position:

• OK with status quo • Component manufacturer has requisite

knowledge to produce the manuals • Concerned about the regulatory burden on

the agencies and industry • CMMs referenced in the AWL are ICA


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Where Do We Go from Here?

• ARSA will continue its advocacy role while recognizing that it is

being “continually mugged by reality.” • ARSA believes the primary driver for the regulators is their

unwillingness to take on the additional workload of CMMs. • The TC holders don’t want to be responsible. • How about the component manufacturers? • Under EASA rules component manufacturers are not design

approval holders • From a risk assessment perspective, now that CMMs

referenced in the ALS are ICA (at least as far as the FAA is concerned) is that enough?


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Marshall S. Filler

Managing Director & General Counsel

121 North Henry Street Tel. 703 739 9543 Alexandria, VA 22314-2903 Fax 703 739 9488 www.arsa.org [email protected]

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