The FAA plans to issue a Safety Management Systems (SMS) proposed rule in September. This is something that every repair station will want to examine, because the rule is expected to mandate SMS for repair stations.
Global SMS
This SMS rule is not unexpected. The International Civil Aviation Organization (ICAO) had originally called for repair station SMS rules to be published by 2007. Clearly, most of the world missed that deadline.
Some countries have had SMS regulations in place for many years. For example, Japan applied SMS regulations to repair stations years ago, and has been a leader in SMS implementation.
Other nations spent time studying SMS and running pilot programs to learn more about what SMS can do (and what it cannot do). The European Union and the United States followed this model. In the United States, I was privileged to participate in two different rulemaking committees designed to investigate SMS and make proposals. These efforts have resulted in both regulatory language and also supporting statutory language that is meant to support safety data processes.
The world has been slowly moving forward with SMS regulations. An important part of this is having a robust State Safety Program (SSP) that establishes national metrics and standards for the SMS. The SSP has an opportunity to serve as a clearing-house for data to support effective SMS programs.
EASA SMS Rules
The European Union published an SMS Notice of Proposed Amendment (NPA) in 2013, and finally published the final EASA 145 rules for SMS last November. EASA 145 repair stations are required to develop and implement SMS programs by December 2, 2022. That deadline is coming up fast, so if you are running a repair station that is directly subject to the EASA 145 regulations, you should be developing your SMS program NOW. If you don’t know where to start, then you should start by reviewing the SMS articles that I have published in this magazine.
What if you are a US-based repair station with EASA 145 privileges? In such a case your certificate is subject to the Maintenance Annex of the U. S.-EU bilateral agreement, and the related Maintenance Annex Guidance. U. S.-based repair stations must comply with the FAA repair station rules plus they must also comply with the special conditions from the EASA rules that have been identified by the FAA and EASA (this is a gross oversimplification, but it works for purposes of this article). Each jurisdiction’s special conditions reflect a list of requirements that (1) are not duplicated in the other jurisdiction’s system and (2) are important enough that they reflect additional requirements over-and-above what the local rules require. For example, EASA has documentation rules that it has identified as a special conditions, and that US-based EASA 145 repair stations must follow even though the US rules do not include such requirements.
The FAA and EASA have not yet identified EASA’s SMS rule as a part of the special conditions, so US-based repair stations should not be required to comply with the EASA 145 SMS until (and unless) they are added to the special conditions. Because the FAA is publishing its own SMS rules, it is quite possible that the EASA SMS rules will never be listed as a special condition.
FAA SMS Rules
The FAA is in their “blackout” period and cannot answer questions about the SMS rule, but we can make a number of educated guesses about what the rule will look like.
It is likely that the FAA rules will follow the ICAO model. If you’ve been reading my articles, then you know that this means that there will be four major components of the SMS rules:
• Safety Policy
• Safety Risk Management
• Safety Assurance
• Safety Promotion
It is also likely that the FAA will try to rely on the SMS rules that have already been published for air carriers (Part 5). The FAA’s air carrier SMS rules address these four components but also include a fifth component: SMS documentation and recordkeeping. This fifth component simply requires the formalization of the SMS program. U.S. law requires documentation requirements to be approved by the White House Office of Management and Budget (OMB) and as a practical matter this generally means that they need to be published as rules. The FAA’s documentation and rulemaking provisions will require the repair station to produce records that the FAA employees can use for their own oversight.
The FAA is planning on issuing the proposed SMS rule in September.
Review the Rule
If you are managing a repair station (or just working in one) then this rule could be the most significant change to the repair station community in the past 20 years. We recommend that everyone in the community look at the proposed SMS rule and consider commenting on it. This is your opportunity to make the rule better:
• If you see language that is unclear in the SMS proposal, then you should highlight it and offer language that is clearer.
• If you do not understand how your repair station will comply with the SMS proposal, then state this in your comments to the FAA.
• If the SMS proposal is not scalable (e.g., it will not apply to your particular business model because of size, complexity, etc.) then state this and if you can think of ways to correct this problem then offer those suggestions.
• If the SMS proposal conflicts with other regulations, then it will be particularly important to highlight this sort of conflict so it can be resolved before being published as a final rule.
• If the SMS proposal duplicates other regulations, then it will also be important to highlight this sort of duplication so that the two duplicate requirements can be merged or otherwise resolved; for example, if the SMS rule requires processes for ensuring compliance, and if this overlaps with the quality manual requirements to ensure airworthiness, then there ought to be a way to develop a single system that efficiently accomplishes both of these oversight functions, together.
The FAA really wants to publish an SMS final rule that will successfully improve safety, so your comments on the proposed rule will be important to helping the FAA tailor the rule and make it successful.
Compliance Corner
We will be holding hazmat (dangerous goods) training on October 4-5, 2022. This is live online training taught by a pair of compliance attorneys who’ve defended companies and helped them develop compliance programs for the past thirty years. You can find out more at https://www.washingtonaviation.com/hazmat.html.
Export compliance has become especially important because of the Russia/Belarus sanctions (and because of the attempts by some to circumvent those sanctions). You can find export tips on our aircraft parts blog (start with articles like this one: https://aviationsuppliers.wpcomstaging.com/2022/ 07/11/watch-the-temporary-denial-orders-that-apply-to-air-carriers/ to get an idea of the sorts of issues facing repair stations).
Editorial Note: The FAA’s Proposed SMS Rule was received at OMB for final review on July 25, 2022. This is typically the final review step before the proposed rule is published in the Federal Register.
Jason Dickstein is the president of MARPA and a Washington, D.C. lawyer. Dickstein was one of the three original founders of the association. He became the president of MARPA in the summer of 2007. As a lawyer in the Washington, D.C. area, Dickstein has counseled and represented aircraft parts distributors, aeronautical repair stations, air carriers, and aircraft parts manufacturers (PMA/TSOA). He has advised and represents clients on matters concerning regulatory compliance and quality assurance. He has also represented a variety of aviation companies in enforcement actions brought by the Federal Aviation Administration.