Instructions for Continued Airworthiness: Long-Standing Issues and Recent Developments – Part II

In the last issue of D.O.M., we discussed maintenance industry concerns over the availability of instructions for continued airworthiness (ICA). The article centered upon the FAA regulations requiring that ICA be provided, and summarized the FAA’s recent efforts to remove barriers on ICA distribution through impermissible restrictions (policy statement PS-AIR-21.50-01). This month, we again look at FAA regulations surrounding ICA and examine issues arising for maintenance providers as a result of inadequate or unavailable information.

In addition to the recent FAA policy and design certification requirements to create and furnish detailed ICA (discussed last issue), the final leg of the stool supporting ICA availability rests upon the fact that such information is essential to airworthiness for the work performed by maintenance providers. For repair stations, Title 14 Code of Federal Regulations (14 CFR) § 145.109(d) states that documents and data necessary for the performance of maintenance in accordance with 14 CFR part 43 are required. The maintenance performance rules in part 43 specifically state that each person performing maintenance “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.”

Clearly, the current manufacturer’s maintenance manual and ICA are the criterion by which other methods, techniques and practices are measured. That is to say that although equivalent or better methods, techniques or practices can be used (i.e., those acceptable to the Administrator), the “default” position in the rule is that the manufacturer’s maintenance manual or ICA must be followed. The reference to § 43.16 (airworthiness limitations) strengthens the point; that section removes the flexibility of using “other” methods, techniques,and practices acceptable to the Administrator when performing an inspection or other maintenance specified in the airworthiness limitations section (ALS) of a manufacturer’s maintenance manual or ICA. In other words, the ALS of a manufacturer’s maintenance manual or ICA must be followed unless a separate FAA approval has been obtained. Quite simply, the rules governing the performance of maintenance inherently rely upon the manufacturer’s maintenance manual or ICA as the primary source of information essential for continued airworthiness.

In terms of ICA, the FAA regulations for design and maintenance fit together nicely; to obtain FAA design approval, design approval holders (DAHs) must develop and distribute detailed ICA, and maintenance providers must follow the ICA. The regulatory purpose for requiring ICA is to ensure the continued airworthiness of the design. Arguments to the contrary go against both the plain language and the spirit of the regulations. The rules do not provide for subsets of maintenance information that are not ICA, and yet are so essential to restoring continued airworthiness that their absence would preclude a maintenance provider from performing the work. Unfortunately, existing FAA guidance creates such a distinction by not considering a component maintenance manual (CMM) to be ICA unless it is specifically identified in aircraft, engine or propeller ICA as the source of information for continued airworthiness actions (see FAA Order 8110.54A). This misguided rationale leads to the notion that simple remove-and-replace instructions are sufficient ICA. Either way, such differentiations work to limit practical access to information and do not fit the regulatory framework for ICA.

A 2009 Aeronautical Repair Station Association (ARSA) request for legal interpretation regarding CMMs brought the issue to light. Put simply, the question asked was whether CMMs referenced in an ALS were considered ICA. For background, ARSA had in mind CMMs identified in mandatory requirements such as critical design configuration control limitations (CDCCL) for maintaining ignition source prevention features of fuel tank systems as assigned under special federal aviation regulation (SFAR) 88. As expected, the FAA confirmed that all CMMs referenced in an ALS are ICA that must be made available as required by § 21.50(b). Of course, that meant a DAH must make such CMMs (and changes to the CMMs) available to any person required to comply with the ICA. In order to address that aspect, the FAA noted that a properly-rated repair station with the need to comply (required to comply) could be a repair station in possession of a component to be worked on, or one having a contract, work order, or some other (undetermined) indication that it was required to comply with the ICA. In stating that it “offer[s] no opinion on what minimum indicia of need would trigger the make available requirement” (emphasis in original), the FAA suggested that it would work with the industry to establish reasonable threshold criteria. Despite that statement, the agency’s illustrations help establish an immediate threshold for activating the “make available” requirement — that is, a repair station with possession of a component to be worked on, or having a contract or work order to work on a component.

In addition, the FAA interpretation touched upon the issues of cost and trade secrets or proprietary data. Regarding cost, the FAA stated that, “it would expect [DAHs] to provide ICA at a reasonable fee to requestors required to comply with terms of the ICA,” since “a [DAH] could make ICA effectively unavailable by charging an exorbitant fee” (emphasis in original). The FAA used stronger language to address trade secrets or proprietary data in light of the regulatory requirement for ICA by stating that:

With regard to potential enforcement of [14 CFR] § 21.50(b), the FAA would not view favorably a [DAH’s] denial of necessary maintenance instructions (ICA) to a maintenance provider with a valid need for them based on a claim of unwillingness to disclose trade secrets or proprietary information. A [DAH] may not limit who may perform maintenance on its products to a select few maintenance providers with whom it has made exclusive arrangements to provide those ICA.

Combined with its policy memorandum on restrictive language in ICA (which is also mentioned in the interpretation) it appears the FAA is moving closer to recognizing its own regulatory requirements on ICA availability. These developments are encouraging and ARSA intends to continue helping the agency fully appreciate its ICA rules. On that note, it is worth mentioning an amicus curiae brief the association filed in support of a case before the U.S. Supreme Court [AvidAir Helicopter Supply Inc. v. Rolls-Royce Corp., cert denied]. Specifically, the brief pointed to federal law authorizing the FAA to create regulations necessary for carrying out its mandate, which includes promoting safe flight by prescribing minimum standards for design and construction, as well as inspection, servicing and overhauling aircraft and related parts. As required, the FAA issued those regulations which include specific requirements for ICA. Therefore, as established in federal case law, the agency cannot choose to ignore the plain language of the rules it made. In short, a federal agency must adhere to its own regulations, even those that pertain to a “difficult” topic like ICA.

Craig Fabian serves as vice president of regulatory affairs and assistant general counsel for the Aeronautical Repair Station Association and is an attorney with the law firm of Obadal, Filler, MacLeod, and Klein. Fabian worked for Obadal, Filler, MacLeod & Klein from 2006 – 2007 and rejoined the firm in 2009 after serving as director of technical operations for the Air Transport Association (ATA; now known as Airlines for America). He was previously an attorney in the aerospace practice of another Washington, D.C. law firm. Before practicing law, Mr. Fabian spent nearly 15 years in the aviation maintenance industry; first as an aircraft mechanic and avionics technician for Northwest Airlines, then as a maintenance control supervisor for US Airways. He holds an FAA mechanic’s certificate with airframe and powerplant ratings, and is licensed to practice law in Pennsylvania and the District of Columbia.