EMARs: The Role of the Regulator

?Introduction

?In the article "Moving towards a harmonised military airworthiness regulatory system " I examined the intent of working towards a harmonized airworthiness regulatory system within the European Defence Industry.?The initiative was started in 2008 and yet, in mid 2020, we still find much deviation from this intent.?In this paper I will explore, in no particular order, some of the driving forces (or blockers) and restraining forces (or enablers) to the accomplishment of this intent.

Force 1:?It’s all about the independence of the MAA

?In the Nimrod Review [C. Haddon-Cave, QC, 29/10/2009], the author (in para 21.18) highlights the need for the MAA to be independent from the regulatory community, as well as from the operational pressures of the day-job.

A key blocker is resistance to change.?Resistance often stems from the fact that the change agents are often the same people who have built their careers and reputations on the outgoing regulatory framework.??Another related blocker is the perspective that some MAA’s have that the adoption of the EMARs is?an evolutionary change (i.e. can be adapted and amalgamated with existing work practices) instead of a radical change, which often means starting with a clean slate if harmonised adoption is the intent)

A key enabler for driving change is independence, and the adoption of the EMAR approach is a radical change for many countries.?It requires brave decisions, careful planning and swift execution [see this Case Study of 2015/2016 , which has to date resulted in the benchmark for successful adoption of the EMARs (see here )].

Force 2:?It’s all about Approved Organisations

?In the EMARs, we refer to 5 types of Organisational Approval:

• Design Organisation Approval (EMAR-21J)
• Production Organisation Approval [EMAR-21G (or 21F)]
• Maintenance Organisation Approval [EMAR-145]
• Continuing Airworthiness Management Approval [EMAR-M]
• Aircraft Maintenance Training Organisation Approval [EMAR-147]

?Approving an organisation means [refer EASA UG.DOA.00143-006]:

1. Establishing a "qualified framework" for the various compliance demonstration activities related within the terms of the approval.?This means an organisation with?the necessary management, allocation of responsibilities, procedures and resources, necessary for the accomplishment of the activities defined in the scope of its approval, and;??a system that monitors the performance of the organisation and ensures that the need for effective corrective action is identified and carried out.
2. Setting the basis (via privileges) to enable the authorities to accept statements/certificates from the approved organisations with reduced authority involvement. These statements/certificates become “passports” for the approved organisation to trade internationally (i.e. in every country who recognise [refer EMAD-R] the issuing authority on that “passport”).

A key enabler to the concept of Approved Organisations is the awarding of privileges, something many MAA’s are slow to do.?In the civil world, that is why organisations pay an annual fee to maintain their approval.?Without privileges the incentive to maintain an Organisation Approval is reduced.

A key blocker to the concept of Approved Organisation is not clearly defining the relationship and responsibilities between them.?The relationship between the 5 Approved Organisations above are well established (as it is based on the EASA framework).?However, many MAA’s complicate this by the retention of legacy regulated stakeholders (e.g. Technical Airworthiness Authorities (TAAs), Special Project Offices (SPO’s), Coordinating Design Organisations (CDO’s), etc) or not awarding approvals (e.g. to Production Organisations or to off-base Maintenance Organisations).

Force 3:?It’s all in the Terminology

Was it Plato who stated, "The path to wisdom is the definition of terms"???Well, let’s explore the term “Airworthiness”:????The EMARs define airworthiness as: “The ability of an aircraft or other airborne equipment or system to operate without significant hazard to flight and cabin crew, ground crew, passengers, cargo or mail (where relevant) or to the general public and property over which such airborne systems are flown”.?And therein lies the problem, it is a risk-based approach and does not help us manage airworthiness.?Let me explain via the following examples:

• An aircraft may be maintained by unqualified technicians to an unapproved maintenance standard and, arguably, still be considered airworthy by the above definition.
• An aircraft could be flown outside of its limitations and, arguably, still be considered airworthy by the above definition.

The problem is that “Airworthiness” is not really properly defined by the civil authorities either.?

I would like to propose that: Airworthiness is the possession of the necessary attributes for flying in safe conditions within allowable limits, where:

• “Possession of the necessary attributes” means it is: Designed by competent Design Organisations, Built by competent Production Organisations, Maintained by approved Maintenance Organisations) and Managed by competent Continuing Airworthiness Management Organisations.
• “Safe Conditions” relate to the normal course and satisfactory conclusion of the flight, inclusive of the human interface.
• ?“Allowable limits” pertains to the flight envelope and expected life limitations.

A key enabler to the harmonised management of airworthiness is making sure we define the term in such a way as to support the Airworthiness Regulatory framework.

A key blocker to the harmonised management of airworthiness is to think of it in hazard terms only, and managing it via risk criteria which is more suitable to occupational health & safety management than what it is to Airworthiness Management.

Force 4:?It starts with the Type Certification Basis

The Type Certification Basis (TCB) is an agreed set of airworthiness requirements that a product must be compliant to in order to be issued a Type Certificate. ?It normally has its foundation in a primary certification code (e.g. FAR/CS-23 or FAR/CS-25) and any additional Special Conditions (to cater for novelty in technology or usage), findings of Equivalent Level of Safety, and agreed Exemptions or Deviations.

The applicable requirements form the primary certification code needs to be set early in the Systems Engineering process and any delay in agreeing Special Conditions adds programme risk. Any additional requirements imposed at the end the cycle (e.g. by an importing authority) can seldom be implemented and most often result in much paper shuffling with little added value.

?A key blocker to the harmonisation and promulgation of the EMARs is the absence of an agreed certification basis for products, parts and appliances.? Correct applications of EMAR21 Subpart B, D, and E requires the solid foundation of an internationally recognised Certification Basis for each military aircraft type.? EMAC-C (which is based on MIL-HDBK-516) is a start in this direction…. but is (i) not a TCB and (ii) is applied differently on a contract-by-contract basis.? EMAC-C does not facilitate the logic of the change product rule in 21.A.101 and does not cater for EMAR21 Subpart O.

A key enabler would be to adopt (not duplicate) civil based codes for the majority of military (e.g. CS-25, CS-27, etc) with a cover letter of military specific Exemptions, Deviations or Additions.??? This is similar to what the UK MAA is doing in Def Stan 00-970, except that this should be agreed internationally via the MAWA Forum.? What will be lacking for some time yet (if ever) is a design code for fighter aircraft. Civil TSO’s can also be adopted (after all, we often have these in our military aircraft), leaving the MAWA Forum to focus? on creating MTSOs for military commodity items (such as for Missiles, Bombs, Racks/Pylons, Chaff &Flare Dispensing Systems, etc.)

Force 5:?It’s not only about the Type Certificate

?In 2016 I published a paper entitled “Who should be the Military Type Certificate Holder? ” in support of Edition 1.1 of EMAR21.?That paper explored 6 scenarios regarding who should be the holder of the Type Certificate, and Scenario 3 was eventually realised in edition 1.2 of EMAR21 (i.e. Expanding 21.A 14 to also provide for the MTCH as a State Servant).??In this paper I will not re-examine the concern of having multiple Type Certificates Holders for the same platform type (e.g. Typhoon and C-17), but I do want to draw attention to the fact that in the EMARs (which are based on the civil approach) the TC?is just step 1 in a much longer timeline.?The longer (and more costly) effort is in the upkeep of the Certification of Airworthiness (CofA).?See the illustration below, where the blue arrow indicates the Initial Airworthiness (i.e. the "as-designed" baseline per EMAR21) effort to certify the first of type, whilst the green arrow indicates the Continuing Airworthiness (i.e. EMAR-M, EMAR145, EMAR-66) effort to maintain the configuration (i.e. the "as-modified" and "as-maintained" baselines) and CofA for each serial number of that type.

A key blocker to the harmonisation and promulgation of the EMARs is ignoring the role of the CofA.

A key enabler to the harmonisation and promulgation of the EMARs is recognising that each CofA needs to reflect back to a single TC and be supported (see TR24M02) by a single TC holder fulfilling the Continued Airworthiness (also referred to as “Continuing Airworthiness of Type Design" obligations.

Force 6:?It’s good for Business

Harmonisation to the same regulatory framework (i.e. pure adoption) means approved organisations can certify (their product, parts, appliances, services, capability, etc. ) once … and sell it many times, both nationally and internationally.?Harmonisation provides the opportunity to reduce non-recurring costs.?It is the reason the civil industry in Europe did it via EASA’s predecessor (the JAA), and is the reason why EMARs came into existence via the MAWA Forum:

A key blocker is when an individual MAA adapts (not adopts) the common approach to such an extent that another nMAA might not understand it fully and then feel compelled to repeat/duplicate any work the primary nMAA did to satisfy their own interpretation of the EMARs. Another blocker is when an MAA insists that certification artefacts are written in an indigenous language (there is is sound reason why ICAO adopted Aviation English - Wikipedia ), thus complicating validation activities and mutual acceptance of Certificates.

A key enabler is mutual respect and recognition between MAAs. That is the intent of the EMAD-R and the more purely the EMARs are adopted the less bureaucratic the EMAD-R process becomes.?However, EMAD-R also relies on individual MAA competence attributes.?So, what are competency requirements on MAA staff???Well, let us consider, for example,?the industry liaison needs for?approved Design Organisations:??DOAs would need to be supported by certification specialists in aircraft design and performance (and a good benchmark are the 19 EASA Certification Panels ).?In order to maintain harmonization and standardization, these specialist need to form close working groups with their counterparts in other MAA/s as well as at EASA.

Now, it will not be feasible for many MAAs to maintain the depth and breadth of competence required to provide a full authoritative service.?In this case, there may be a few combinations of options to explore:

• second competence personnel from other MAA’s (or even from EASA);
• ?collaborate across regions (e.g. Scandinavia) to build regional expertise;
• collaborate on platform types (e.g. fast jets, combat helicopters) to build type specific expertise;
• ?etc.

For the collaboration initiatives to work, mutual recognition of competence (e.g. via EMAD-R) is essential to prevent duplication of any approval/certification effort.

Force 7:?It’s good for the Regulator

Each MAA has a problem in common with the regulatory community, and that is access to resources.?One way to manage this problem is to use your resources effectively?and the concept of Approved Organisations (see Force 2 above) works in their favour:?By awarding privileges the MAA’s level of Involvement may be reduced.?Couple this with a performance-based environment it also means that the Pareto Principle[1] can be applied to focus scarce MAA resources where it is needed most.?Let us consider the MAA’s surveillance activities, which include activities such as audits, occurrence monitoring, etc.?The surveyors should take due consideration of the effectiveness of the Approved Organisation’s internal surveillance activities (e.g. their Quality Assurance and Internal System Monitoring (ISM) functions)?

?A key blocker is not understanding/exploiting the (approval) eligibility criteria in each of the EMARs.?For instance, see GM to 21.A.133(a) where it states:?“It is not the intent of the competent authority to issue approvals to manufacturing firms that perform only sub-contract work for main manufacturers of products and are consequently placed under their direct surveillance”???????

?A key enabler is when Approved Organisation has implemented an effective (i.e. high performance) ISM function.?If this is indeed effective, the MAA Surveyor can rely to a certain extent, for his/her own surveillance activity, on the results of the Approved Organisation’s monitoring system [refer EASA UG.DOA.00143-006].

[1] The Pareto principle (also known as the 80/20 rule, the law of the vital few, or the principle of factor sparsity) states that, for many events, roughly 80% of the effects come from 20% of the causes.

Force 8:?It’s good for the Nation

?Harmonisation is good for business, and that means high employment, a strong local industrial capability and more taxpayer revenue.?Nations need their own capability, and this is evidenced in many foreign procurement contracts which contain an offset obligation.?In setting up a regulatory framework we need to remind ourselves of how much the international civil and military approaches are converging, as explored in this extract below:

A key enabler is when the MAA take a leaflet from the ICAO/EASA/FAA booklet which is always to have a dual remit:?Ensure safety of the industry and develop the industry.?Regulations are not meant to get in the way of business...... they are meant to provide a framework for an industry to do business.??MAA’s should be enablers (not blockers) to the introduction of new capabilities and capacity. It is easy to regulate industry out of business if the regulatory framework is not set up with this in mind.?

A key blocker is when an MAA insists on a bespoke[1] Handbook/Exposition written for the individual MAA when the organisation operates internationally.?We need to remind ourselves that the primary purpose (obligation) of an Approved Organisation’s Handbook/Exposition is to document its Management System to its staff (e.g. see 21.A.265(b) and 21.165(a)… the secondary purpose is to satisfy interested Regulatory Authorities (i.e. civil and military).

[1] For more information, see my paper “The pros and cons of the DAOS Template”.?The content and intent of this paper can be applied to any Approved Organisation.

Force 9: It’s about international collaboration

The benefits of developing a full suite of common military airworthiness requirements will offer tangible savings in terms of reduced development time, initial procurement costs and will support more efficient collaborative capability.?An EDA study (see page 3 here ) showed that could:?

• Generate at least 10% cost savings on industry and government’s side, and up to 50% reduction in the programme duration
• Increase the effectiveness of support to military aircraft operations ‘in-theatre’ with a potentially wide pool of transnational engineering staff and shared common spare parts being available
• Deliver positive effect on the levels of safety of European military aircraft due to the utilisation of harmonised best practices.

A key is enabler a pure adoption of the EMARs.?It was for this reason that the EDA was launched via a non-binding political agreement (the “Cyprus Agreement”) where each participatory Member State committing (via their Ministers of Defence) their MODs to work towards a harmonised airworthiness regulatory system to facilitate economies of scale, collaborative procurement and cross border co-operation.

A key blocker is evident when a Member State wants to acquire military assets from a State of Design who is not operating within the EASA/EMAR Framework (for instance via the U.S. Government Foreign Military Sales?(FMS) programme).?Both EASA and EMAR 21 fundamentally are scoped to address a community who have adopted that framework.?As soon as you work with another “State of Design” or “State of Production” who operate to another framework, then EMAR21 on its own cannot cope with this.?For these scenarios the MAA needs to provide specific additional guidance/requirements to supplement EMAR21 (as EASA have done here as well as via Article 2 of the Basic Regulation).??This presents another opportunity for Member State collaboration, as it will be more efficient to have, say, a single EU-FMS Agreement than what it would be for each Member State to negotiate its own.

Conclusion

?The role of the MAA is more than just to regulate. The way they have set up their regulatory framework?can make or break its nation’s industrial capability.?

Your comments/thoughts/critique/contributions would be appreciated.