Accepting Foreign Airworthiness Directives – A More Dramatic Change Than It Might Appear

Accepting Foreign Airworthiness Directives – A More Dramatic Change Than It Might Appear

Congress has passed a new FAA Reauthorization Act. The law authorizes FAA expenditures but it is also used as a vehicle for changing substantive law, as well. This year’s law includes a provision that could pose a thorny issue for Americans, in that it offers an opportunity for the FAA to potentially side-step traditional rulemaking processes in favor of acceptance of foreign rules.

The specific provision at issue is found in Section 242 of the FAA Reauthorization Act. That provision allows the FAA to inter into biateral agreements under which the FAA would accept foreign Airworthiness Directives. As with any other FAA Reauthorization provision, the devil is in the details, and how the FAA implements this provision through its regulatory structure will be vitally important.

Under current law and regulations, Airworthiness Directives are regulations, and as such they are subject to the due process requirements spelled out in the Administrative Procedures Act (APA). This means that under normal circumstances, an Airworthiness Directive cannot be issued by the FAA unless the FAA first publishes the proposal in the Federal Register, seeks comments from the public, considers those comments, and then publishes a final rule version of the Airworthiness Directive.

The FAA is the aviation safety authority in the United States. Other nations have their own aviation safety authorities. The United States has bilateral aviation safety agreements which faciliate trade in civil aviation products and articles. Often, the philsophical essence of those agreements involves an agreement among the aviation safety authorities to rely on the findings of the other in certain limited circumstances, in order to faciliate both commerce and safety.

One purpose of these sorts of agreements is to make the process of acceptance of products and articles more efficient, for both safety and commercial reasons. So historically, the bilateral agreement have largely dealt with reliance by one authority on the findings of another. Examples of this include streamlining of the process for issuing a type certificate, acceptance of aircraft parts approvals, acceptance of export airworthiness approvals, and acceptance of local oversight of repair stations as the basis for renewing foreign repair station certificates.

Section 242 will permit the FAA, as the United State’s aviation safety authority, to circumvent normal process in order to more rapidly implement a foreign Airworthiness Directive through acceptance of that foreign Airworthiness Directive. This is quite a departure from the traditional scope and reach of bilateral agreements because this clause now permits the United States to accept foreign rulemaking as the basis for United States’ rulemaking. This could be a positive thing for safety (as it could make the process of publishing important safety information more efficient) but it could also open a door to mischief by circumventing norms of due process. I will explain what I mean by “mischief,” but first allow me to discuss the norms of the bilateral process so you understand why this is a big step.

The foundation of any bilateral aviation safety agreement is a finding by the regulatory authorities that they have each (1) investigated the aviation safety system of the other authority, and (2) found that the other system yield sufficiently similar results that the first authority can rely on certain (described) findings of the second authority. This provides a foundation for “trust” between the government authorities that might allow them to rely, in part, on certain technical findings made by the other authority.

For example, the United States and the European Union have investigated each others’ airworthiness systems, and found that they typically come to the same conclusions when posed with the same data. They do so through very similar (but not identical) mechanisms.

Within the scope of international airworthiness affairs, there are several terms used to describe an authority’s reliance on a foreign authority’s work, including: “approval,” “validation,” and “acceptance.”

Where there is no (relevant) agreement between the FAA and a trading partner, there is no deference to the aviation authority of that trading partner. This means that something that is approved by the foreign authority must be subject to a fresh review if it is offered to the FAA for a similar approval.

But when we enter into a bilateral agreement that is based on a level of trust between the authorities, the authorities can use validation and acceptance. Validation happens when the FAA and a foreign authority identify the similarities in the results of their systems, and then move to a relationship where they can each accept certain findings of the other’s system. Because of this acceptance, the second (usually the ‘importing’) authority does not have to duplicate the analysis performed by the first authority (often known as the ‘exporting authority’). This means that they merely have to validate the findings of the other authority in the technical areas where there are differences (how this works in practice is a little different from how it is supposed to work in theory). So, for example, when Airbus designs a new aircraft and gets it type certificated in the European Union, the FAA can accept some of the findings from the European Union, and only needs to check the engineering in certain technical areas that require validation. If the design is approved by the FAA in the validation areas, then the FAA can make a finding that the aircraft design meets the FAA’s regulations and the FAA can issue a U.S. type certificate to Airbus. This is meant to cut down on duplicative engineering review work by the authorities.

Acceptance, though, reflects the ultimate level of trust among authorities. Acceptance means that the importing authority accepts the approvals of the exporting authority, and does not need to review them before doing so. As an example, most countries have historically accepted FAA aircraft parts approvals in their bilaterals (like PMA and TSOA). Until recently, the United States has not directly accepted foreign approvals; today, though, the FAA accepts Canadian and European TSOAs (based on a lengthy process of trust-building and harmonization among the authorities) and also accepts certain parts approvals from countries like China.

The term “acceptance” is well understood in the context of bilateral relationships among aviation authorities. The connotation is that we accept without a need to make any further showing.

While this level of trust among authorities has been implemented in the past around the certificates and approvals issued by one, and then trusted by the other, Section 242 brings this process to a new level. Because Airworthiness Directives are regulations, Section 242 allows the FAA to enter into a bilateral agreement in which we trust the regulations promulgated by a foreign authority to serve as the basis for regulations that will be promulgated in the United States.

This certainly has some potential for positive safety impact. Recently, Southwest Airlines had a CFM56–7B fan blade failure. The FAA had issued a proposed Airworthiness Directive on this engine (and its fan blade) but it had not yet finalized the Airworthiness Directive process. The European Aviation Safety Agency (EASA), on the other hand, had already issued a final Airworthiness Directive addressing this issue. One could argue that if the FAA had been allowed to reissue the EASA Airworthiness Directive, instead of going through the norms of due process, then it might have prevented the failure by getting the Airworthiness Directive out more rapidly.

But there is equal potential for mischief. One of the reasons for the processes defined for rules in the Administrative Procedures Act (APA) is that regulators do not always see the problems in their own rules. This is not because they are stupid – this is because they are human and they are subject to the limits of human experience and creativity. When you open up a rulemaking project to scrutiny by the whole world, you have a chance of recognizing flaws and unintended consequences that the rule-writers did not notice. In the context of FAA regulations, proposed rules can have non-safety impacts. These non-safety impacts can be adverse impacts, and in many cases there is a better way to achieve the desired safety result. Regulators do not always recognize these non-safety impacts. The process defined by the Administrative Procedures Act allows the aviation community to point out those unintended consequences and to propose a better way to approach the problems and achieve the desired safety result.

Many years ago, I was involved in an Airworthiness Directive project. The proposed airworthiness directive claimed that there were safety problems with a particular crankshaft, and that it must be replaced with a different crankshaft. Repair stations complained that the engine manufacturer was using the Airworthiness Directive to ‘capture’ the maintenance market in way that was unfair. This “unfair capture” argument was less relevant to the FAA than safety concerns, but it did motivate some repair stations to invest in studying the issue. So we started to look at the safety allegations and the data surrounding the populations of crankshatfts. When we investigated the data, it turned out that the data showed that the new crankshafts had a higher incidence of failure than the older one it replaced– not a lower one! The proposed Airworthiness Directive would have reduced safety! In response to this data, the FAA withdrew the proposed Airworthiness Directive. This is part of the reason that the FAA invites the public to participate in rulemaking activities: in order to supplement the FAA’s resources and help the government reach the right decision for safety.

The potential problem with Section 242 of this year’s FAA Reauthorization Act is that if it is interpreted to circumvent the Administrative Procedures Act, then it could remove the opportunity for Americans to learn of a proposed U.S. Airworthiness Directive, review the proposal, and offer helpful criticisms and improvements before that proposed Airworthiness Directive becomes a regulation. A court might say that the law cannot be read that way (because both laws apply), but a court also might rule that Section 242 was intended to circumvent the APA. Ultimately, whether the law is implemented in a way that closes off the rights of interested persons to participate will depend, in part, on the FAA’s decisions about how they choose to implement the authority offered by Congress (as well as the language of the biateral agreements used to implement this authority).