Interacting With The FAA For TC & STC Projects
Kilroy Aviation, LLC
STC ODA Parts 23, 25, 27 & 29, Skilled in FAA Type & Production Certification, Continued Operational Safety (COS). Expert witnesses in COS, Type & Production Certification.
How to achieve a healthy & mutually respectful relationship with the FAA
?This is written as a companion piece to “FAA Technical Mandate in a Political World[1]” (Link below this paragraph), which offers an explanation of what motivates the FAA, how politics and perceptions affect them, what their priorities are, and why they make certain decisions. This article intends to provide some insights based on that previous article that should help the reader understand how to be successful in your daily regulatory operations and maintain a healthy relationship with the FAA.
When we’ve been toiling in the FAA certification business for decades, we tend to take the ground rules for granted. Sometimes when a new co-worker makes a boneheaded move it’s from pure ignorance even though our knee-jerk reaction is to think “What a dummy”. The difference between the two is, ignorance can be fixed and we were there ouselves. So, if it’s ignorance, we’re presented with a teaching opportunity.
This epistle pertains primarily to type and production certification and the FAA Aircraft Certification Service[2] (AIR), but it should be applicable to relationships with the Flight Standards Service[3] (AFS) as well. The AFS Aircraft Evaluation Division[4]?(AED)?interfaces directly with AIR “…to ensure Aircraft Certification Service (AIR) and Flight Standards Service (AFS) are mutually-informed of product-specific continued operational safety issues and information.” There are two types of ground rules; some are written and the others are woven into our culture. One is easy and the other? Not so much. The FAA ground rules are formal and IN-formal. The formal ground rules are simply the regulations, policies and other tools of the trade that are published and easily found. Even though they appear to stand alone, the words “regulatory system” are meaningful because they are interwoven in a way that requires deep experience to understand and navigate. The IN-formal ground rules relate to the FAA culture and behavior; what motivates them and what just plain pisses them off. I hope the reader can use this information with the companion piece to understand how and when to approach the FAA, who can help and when you should ASK for help.
In a sense, folks see the FAA as “The Great Monolith”, sitting on a high place, unmoving and uncaring. Of course that’s far from the case because once we learn and understand the FAA’s primary mission, what motivates them and how to approach them, the clouds begin to part and a way forward can be seen. Of course, patience is truly a virtue.
I’ve pounded away at many of these fundaments in many, many previous documents but in this case I’m trying to pull them all together to present a more complete picture. Hopefully I can provide a valuable nuance or two. I consider this to be a living document because there’s no way one person can know all there is to know, learning never ends and I’ve been known to be wrong – just once or twice. That means feedback and discussion on this topic are invited.
One major point: When I say “The FAA” it means local/regional offices, national lines of authority, individuals, etc. They all differ from one to the next in this document, but I’ve written somewhat generically & in a broad manner. In general, however, think in terms of your regional FAA office, my hope is that you’ll find this helpful in your daily operations. Some topics are addressed in my past articles so I’ll try to be a bit less “wordy” on those topics.
FAA Regulations, Policy, Procedures and Advisory Material
This is the section with information that is documented in black & white.
A quick note about FAA Orders vs Advisory Circulars (AC):
v? An Order is exactly that, it ORDERS FAA employees to follow specific instructions. All Orders are available to the public, they provide significant insight into FAA decisions, processes, etc.
v? Nearly all ACs start with a statement similar to “This is one way but not the only way to ….” show compliance or test components and aircraft. It is not mandatory to follow a procedure published in an AC BUT most ACs describe procedures and explain compliance techniques that have been regularly accepted by the FAA.
?? 14 CFR Part 3 “General Requirements” applies to ALL FAA regulations, from Part 1, “Definitions and Abbreviations” to Part 198 “Aviation Insurance”. If you touch any regulation from §1 to §198, this applies
o?? §3.5 Defines AIRWORTHY as “…the aircraft conforms to its type design and is in a condition for safe operation.” (Emphasis added). This is important; “…conforms to its type design…" is a black & white requirement, it conforms or not. “…in a condition for safe operation.” Is more of a judgement call, which typically requires decades of experience.
?? 14 CFR Part 5 “Safety Management Systems” The FAA has been pushing SMS for some time now, and the applicability is growing. The regulation was published on April 26, 2024. It is SO new and fresh that there have been no amendments as of the date of this writing. That alone makes §5 a rare bird, at Kilroy Aviation we urge our clients to read it carefully, find where you may be affected and what sort of discussions you might want to have with your FAA oversight office.
?? 14 CFR Part 21 “Certification Procedures for Products and Articles”; THIS is the headwaters for everything we do in type and production certification. §21.1(b)(6) defines “product” as “…an aircraft, aircraft engine, or propeller…”, all items that are approved by a Type Certificate. Articles, are everything else, defined by §21.1(b)(2) as “…a material, part, component, process, or appliance…” The §21 title and length of this section says it all.? It all starts here:
o?? This is where the §3.5 definition of “airworthy” becomes important. All of Part 21 will print out on roughly 67 pages. Airworthy/airworthiness is found 219 times, and Conform/conforms/conformity is found 70 times, for a total of 289 hits, which then is over 4 times per page on average.
·???????? The phrase “…conforms to its approved design…" is found 11 times, while “…conforms to its type design…" (Emphasis added) is found only once in Part 21. The difference is that “type design” applies to engines and propellers that are presented to the FAA for type certification, and “…approved design…" is used more broadly, for articles (parts) and production systems.
·???????? Looks like the FAA considers airworthiness and safety to be pretty important.
o?? §21.3(a) may be the most critical regulation that applies to post-type certification activity. It states, in part, that a design approval holder “…must report any failure, malfunction, or defect in any product or article manufactured by it that it determines HAS RESULTED in any of the occurrences listed in paragraph (c) of this section.”
o?? ?§21.3(a) also states that a design approval holder “…must report any defect in any product or article manufactured by it that has left its quality system and that it determines COULD RESULT in any of the occurrences listed in paragraph (c) of this section.”
·???????? This makes it abundantly clear that any suspect part or system that is caught by a quality system before an airworthiness certificate is issued need not be reported and you’re off the hook.
o?? Note the words “…that it determines has resulted in or could result in any of the occurrences …”
o?? §21.3(e)(1) then declares “Must be made to the FAA within 24 hours after it has determined…” that it is reportable.
o?? One might argue (a) that you can relax, take your time in actually making a determination that a problem is reportable. Also, the List in paragraph §21.3(c) outlines very specific types of failure, and (b) with new technology there are some safety-related events that are not necessarily found on that list.
·???????? KILROY ADVICE: Don’t go for either option (a) or (b) to avoid reporting. Just don’t. And if it has to be explained it to you, you’re probably already in serious trouble.
o?? §21.3(d) goes on to say “The requirements of paragraph (a) of this section do not apply to—" (This all paraphrased)
·???????? Failures, malfunctions, or defects that…
????????????????????????????????????????????????? i.??????????? Were caused by improper maintenance or use;
???????????????????????????????????????????????? ii.??????????? Were reported to the FAA by another person under this chapter; or
?????????????????????????????????????????????? iii.??????????? Were reported under the accident reporting provisions of 49 CFR part 830 of the regulations of the NTSB.
o?? A good jailhouse lawyer[5] might argue that §21.3(d) gives a TC holder a pass on reporting. DON’T BELIEVE IT. It doesn’t matter who else submitted a report. A strong relationship with the FAA overrules everything. Do the right things for the right reasons, period. §21.3(d)1.i. does indeed get a TC holder off the hook for reporting, but a high INTREGRITY TC holder should investigate, maybe your Instructions For Continued Airworthiness (ICA per §21.50) are lacking. Go after it.
o?? In a sense, safety and reliability are connected. Obviously, a safety-related premature failure of a life limited part must be reported to the FAA. Aside from that, the FAA doesn’t typically care about reliability or premature failures of non-critical parts. The exception may be cases (for example) of twin engine overwater operations (ETOPS), which is heavily dependent on reliability. Aside from that type of issue, reliability is more of a market-driven consideration. A TC holder must understand where the line is drawn between safety and reliability because you don’t want to bury the FAA in data that has no value for their COS mission, and of course UNDER reporting would be taken as a very serious violation of trust and your own legal and ethical accountability.
o?? When it comes to §21.3 reporting, don’t over-report, but be conservative in making your determinations. And yes, it’s a squeeze play between over- and under-reporting, which takes us back to your relationship with the FAA. Regular meetings are strongly encouraged and frequency is negotiated. A TC holder can do a brief overview of potential reports and have a quick back-and-forth in real time. Eventually your determinations will become almost automatic.
?? FAA Order 8100.4C “Type Certification”
o?? The Order “…prescribes the responsibilities and procedures the FAA must follow to certify new civil aircraft, aircraft engines, and propellers, or changes thereto, as required by 14 CFR part 21.” Note the words ”…FAA must follow…”. Think back to my comment about the difference between Orders and ACs.
o?? This is very important: On Page 1 (PDF 23/201) of the Order you will find “Because an STC is a TC, 14 CFR part 21, Subpart B, Type Certificates, applies.” Don’t let anyone try to convince you that an STC is not a big deal
?? The Industry Guide to Type Certification (CPI I, II and III)
o?? The acronym CPI means “Certification Process Improvement.” It is an FAA/Industry agreement that reaches back into the 1990’s when the FAA and industry agreed to produce an agreement intended to “…enhance the certification process through open communication and accurate feedback.”
o?? The CPI concept came into being after industry (correctly) pointed out that there were major differences among the various Aircraft Certification Offices (ACO) that led to unnecessary costs and schedule problems. The FAA countered (also correctly) that industry was engaged in “region shopping”. So they agreed to develop a negotiated process that was intended to minimize differences in the ACOs.
o?? The CPI was revised twice after its first publication. CPI I was published May of 1996, CPI II September 2004 and CPI III May 2017. CPI IV is being considered as this article is being written.
o?? The CPI provides an appeal process with no backlash, assigned accountability between FAA and applicant, and describes mutual operating principles.
o?? https://www.faa.gov/sites/faa.gov/files/aircraft/air_cert/design_approvals/transport/CPI_guide.pdf?
?? 14 CFR Part 39 “Airworthiness Directives”
o?? § 39.3 Definition of airworthiness directives: “FAA's airworthiness directives are legally enforceable rules that apply to the following products: aircraft, aircraft engines, propellers, and appliances”.
o?? An AD is an amendment to §39.13, which gives it the force of law; “FAA publishes airworthiness directives in full in the Federal Register as amendments to §39.13.”
o?? Per §39.19 a TC holder “…may propose to FAA an alternative method of compliance (AMOC) or a change in the compliance time, if the proposal provides an acceptable level of safety.” and §39.21 provides instructions for obtaining an AMOC.
?? Supreme Court decision United States v. Varig Airlines[6]
o?? This decision clarifies in very specific language that the accountability for the safety and airworthiness of a product resides with the manufacturer and operator, not the FAA. The FAA can only “spot check” for compliance with the regulations.
o?? If I were teaching a class, the SCOTUS decision would be mandatory reading.
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FAA Relationship Management
This is the soft stuff that often takes years to fully grasp
?
?? There is no harm in talking with the FAA when you’re new to certification and thinking about taking on a project.
o?? In my time as an FAA engineer and ACO manager it was usually fun to sit with a new person or company, discuss their plans and try to point them in the right direction.
o?? A second or maybe third visit to the FAA might be acceptable but find competent help, the sooner the better because you’ll need to show by your actions that you’re moving forward. If you can’t demonstrate that you know how to manage the intricacies of certification, the FAA will likely become impatient after more than a couple visits.
?? IT’S ALL ABOUT RELATIONSHIPS
o?? I will never get tired of making this point. Developing and maintaining a good relationship with the FAA is critical, but how do you pull that off? The best way NOT to pull it off is with lip service. Our friends in the FAA have really good BS Meters. So your best bet to earning and maintaining a strong relationship boils down to performance (walk the talk) and integrity (honesty & humility).
o?? Understand what the FAA needs to know vs what’s not necessary to share. DO NOT try to pull a fast one on them, you will be found out.
o?? PERFORMANCE: Know what you’re about. Tell the FAA what you’re going to do and do it well. Know your limitations, and when you need competent help, get it.
o?? INTEGRITY: When you make a mistake, own it and tell on yourself. Flush out the root cause, determine corrective action then work it until you know it’s fixed. Then loop back to PERFORMANCE and track it. Obviously this applies equally in the TC and PC world.
?? There’s also no harm in arguing with the FAA; a better phrase might be “Have spirited discussions”. Caveats? Yes, absolutely:
o?? FAA respect is earned, usually over a period of time. And of course it must be mutual. The best discussions with the FAA happen when you realize the FAA is treating you as a peer. That can only happen when you completely accept their role as a regulator and understand exactly where the line is drawn between applicant and regulator. That doesn’t mean they’re right every time, but if respect is mutual, they will listen to your arguments.
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o?? Know what you’re talking about. Deliver your arguments with references to regulations, policy and advisory material. Keep in mind, only the FAA can interpret regulations but you can help with factual references that will contribute to their decisions in a positive way.
o?? Look at preamble material, which can be found under each regulation in the electronic Code of Federal Regulations[7] (eCFR) Title 14, Aeronautics & Space. Dive in, root around a little and get familiar with it. Remember this: The preambles are foundational.? ?
o?? Here’s where humility becomes important. When you discover a mistake, tell on yourself, tell everyone who might be affected by your mistake, including (especially) the FAA if a problem arises in the middle of a certification program, is out in the world and especially if safety may be compromised. Stop, go back and find the root cause. Correct it, exercise it several times to make sure the fix is good. Then proceed but be watchful.
§? Here’s an old adage about humility vs humiliation; Humility is when we tell on ourselves, humiliation is when someone else (FAA, for example) does it for us.
?? The Aircraft Certification Service works to three operational priorities:
1.????? Continued Operational Safety (COS)
o?? It’s a huge fleet already out there: Keep them flying, keep passengers and crew safe, especially maintain public confidence.
2.????? Rules, Regulations and Policy
o?? Keep the regulatory structure in tune with technology and ahead of the safety record.
3.????? Certification of aircraft, products and parts
o?? Allow new aircraft, parts etc to enter the marketplace, major modifications, repairs & alterations.
o?? Items #1 and #2 above are inherently governmental, thus only item #3, certification, can be delegated.? Certification has been successfully delegated to varying degrees for over 80 years (See FAA website “Delegation and Designee Background[8]”) still, it will probably have to move even further because the demand continues to grow.? There is natural tension within the FAA because some employees feel a need to keep their hands in the technical aspects of their work while they are being directed to expand delegation and reallocate more resources to the first two priorities. This is another FAA balancing act: Increase delegation to individuals and organizations who, in the opinion of some in the FAA, may not be ready for that responsibility or may abuse it.
o?? Aircraft Certification only has roughly 1300 people, including managers and support staff. Thinking about the scope & size of aviation, that number would be almost meaningless without the high leverage of delegation.
o?? Many “newer” people (~10 years or less) within the FAA are unaware of these three specific priorities and to the best of my knowledge the priorities were never institutionalized. After a while working with the FAA from the outside looking in, however, it becomes obvious that it’s built into their culture. Although the first two priorities limit direct FAA certification support for the industry, Priorities #1 and #2 are vital to keeping the flying public safe and confident.
?? As an aside, the regulations are minimum requirements. It’s helpful to know where the line is drawn but be mindful that the line often requires interpretation which, again, is completely FAA turf.
o?? ?A caveat. A design that is entirely based on driving decisions to those minimums “To save costs” may lead to a minimum product. That can easily result in failure to achieve the desired cost and operational goal. Be aware of the minimums but design to the intended function and you’ll be OK.
o?? There are no “maximum” requirements, there is no upper limit but that’s where costs will drive your decisions.
?? Precedents & past FAA approvals may be presented in discussions, but the FAA is fallible, and there are a few approvals out there that shouldn’t have seen the light of day. A frequently used FAA phrase is “We are under no obligation to repeat our past mistakes.” When you hear those words, typically that part of the discussion is over.
o?? In general, if an FAA “past mistake” is not shown to be unsafe, the FAA may not take action to UN-approve it, which can be a burdensome task. Some designees have mistakenly or even intentionally approved a design feature that was otherwise not in compliance with the regulations. That will lead to a serious discussion with that designee and possible corrective action such as cancellation or nonrenewal of that person’s authorization[9].
?? In the limit, even if the FAA can confirm a “one-off” design is determined to be unsafe, an Airworthiness Directive[10] (AD) isn’t well supported by the regulations. In many cases, the FAA may approach the aircraft owner to discuss the issue and find a resolution, and of course there will be some pointed discussions with the person(s) who put it out there. These situations are relatively rare and each one is likely to be approached differently, but good judgement and FAA “powers of persuasion” typically prevail.
o?? Regarding an AD, §39.5(b) states an AD is required when “The condition is likely to exist or develop in other products of the same type design.” Note; use of the word “products” (plural) is used, thus a strict interpretation of that statement tells us that an AD against a single unsafe approval is not clearly supported. We are mindful that ONLY the FAA can interpret a regulation, and if push comes to shove the nuclear option of an AD may not be necessary, there is a solution.
o?? Here’s where §3.5 comes in handy. Again, that regulation defines AIRWORTHY as (1) “…the aircraft conforms to its type (approved) design and (2) is in a condition for safe operation.” (Emphasis added). When a DER incorrectly approves a design which turns out to be unsafe or at least inappropriate, the word and in §3.5 is put to work. A DER is a Representative Of The (FAA) Administrator[11], and in nearly all cases a DER approval is fully an FAA approval, which satisfies requirement #1. HOWEVER, if Aircraft Certification (AIR) determines the approved part, repair, etc is NOT “…in a condition for safe operation.”, they can pick up the phone and call Flight Standards (AFS).
o?? Flight Standards has a simple and absolute solution to an unsafe approval that takes just a few minutes to accomplish. The FAA Form FAA 8620-1?“Aircraft Condition Notice” may be completed and attached to an airplane by a Flight Standards Inspector. If justified, an Aircraft Certification (AIR) Engineer or Inspector can request that action.
?? In some areas, the FAA is seen as an impediment to progress (aka the Great Monolith) for a few basic reasons. Some start-up companies develop the notion that the FAA is being unresponsive or blocking progress, they feel the FAA is playing the “Bring us another rock” game. That’s almost never the case, they don’t help with decisions or contribute to designs because the FAA must not “own” any aspect of your problems or solutions. So, the FAA:
o?? Will NOT tell you how to run a program.
o?? Will NOT recommend any specific person or company if you need help.
o?? Will NOT recommend design changes, even if there may be an unsafe feature.
o?? If your design has an unsafe feature, you will hear about it, and you don’t want to hear it first from the FAA. Further, just as in your design phase, the FAA will not tell you how to fix it. They should be willing to discuss why there may be a problem, but you are accountable for the WHAT, WHY, HOW & WHEN before going in to discuss it. It’s perfectly reasonable to have a dialogue with the FAA about a possible unsafe condition, if only (a) to help them understand it and (b) demonstrate that YOU are on top of it. If you’re unable to quickly grasp the issue or come up with a fix in the first round, your credibility may be in trouble.
?? Try not to burn any bridges. This is really more of a common sense item but it’s surprising how many people leave behind a bitter taste with the FAA and have no idea that they might have damaged their relationship. There is a huge number of “Don’ts” but it really boils down to respect. The FAA is a mirror of sorts; if you respect the FAA, that respect will be returned (see Performance & Integrity).
?? If you’re using a third party to help with a certification program, be very, very careful
o?? Type certification can get very convoluted, a skilled scam artist can do a credible song & dance and throw out a few key phrases that seem to be credible.
o?? When you know where you want your program to go and you take a step in that direction, you’ll be faced with several options. When you choose a direction, you’ll find multiple options again.? Every step can lead to success or disaster. A competent certification person shouldn’t necessarily make your decisions for you, BUT that person should be able to help you understand your options and the trade-offs for each option.
o?? The certification community, especially among third parties, is very small. In general, we know who performs and who sells snake oil but many of us won’t openly share that information with someone we don’t know. It’s bad form to degrade a competitor, it can be seen as a clumsy attempt to boost our own profile.
o?? My best advice is to ask for help from a trusted person. Criteria might include: track record, number & types of FAA delegation and reputation in the certification community,
o?? A quick note on delegation and FAA participation; If you’re working on a unique project, perhaps with new technology or unique types of operation, the FAA will almost certainly be involved even when the 3rd party (DER, ODA, etc) has a perfect relationship with their FAA oversight office. The reason is simply that the FAA is accountable for all findings of compliance, and new technology or unique operational characteristics may give them cause to get involved to the degree that allows them to understand how to approach compliance. You may face Issue Papers, Special Conditions, Exemptions or Equivalent Levels of Safety requirements, which will affect your schedule, so plan appropriately.? See FAA Order 8110.4C for more information on those topics.
?? FREEZE your design before you begin your certification project.
o?? OK, there are exceptions, no design is perfect and minor changes in mid-stream are the norm. It’s critical to remember, however, that a premature design that’s pushed into a certification project before it is ready can lead to re-starts that can be very painful. A typical certification project is normally very structured and can be inflexible, which means midstream major design changes can be very costly in terms of time and money.
?? Consider running your project through FAA individual Designated Engineering Representatives[12] (DER) and Designated Airworthiness Representatives[13] (DAR-F) or an organization such as an Organization Designation Authorization[14] (ODA) rather than directly through the FAA.
o?? The reason is simple. A quick review of the FAA Three Priorities shows that certification falls off the table behind priorities 1 & 2. Nevertheless, an FAA certification office in your region will accept your application for a TC/STC simply because it’s their job. You will get to the finish line, but it will almost certainly take far longer to complete your project, which is a common complaint.
o?? A conformity inspection or test plan review through third parties may take a few days to a week. Do not expect that same timeliness from the FAA, you can expect them to take weeks or even months to schedule and complete those actions. This relates directly to the FAA three priorities. Be mindful, the FAAs primary accountability is to the flying public, and a single project will rarely, if ever, rise to that level.
o?? Hiring FAA designees will almost certainly get you over the finish line relatively quickly but there will be a price, whereas the FAA doesn’t charge for their services. It all boils down to “Time is money.”
o?? ODA Directory:
o?? Individual Designee Directory:
?? One faceplant can wipe out 10 pats on the back
o?? You can have the world’s best working relationship with the FAA but a single critical shortcut or intentionally withholding important information can land you in very hot water.
o?? Inadvertent errors are fine, we all make mistakes and the FAA is typically OK with the occasional flub. You must avoid multiple screw-ups, failure to report anything that is safety related, or holding back on critical information.
o?? Typically, full disclosure of problems is preferred BUT use good judgement. You may not have to report what you THINK may be a problem. In many cases it’s OK to hold off until you KNOW, or at least when you can see it headed in the wrong direction.
Always work on keeping your relationship with the FAA healthy and open, and don’t be afraid to pick up the phone or send a quick note if you have a problem or see one coming. In time you will reach a balance that will allow you to intuitively know where to draw the line between making that painful call or waiting just a bit longer. Good luck.
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Mike Borfitz????????????????????????????????????????????????????????????????
CEO, Kilroy Aviation LLC
Sr. Director, Airworthiness & Deputy Director General at Civil Aviation Authority of Israel
4 个月Some good advice for all applicants for AW certification.
Certification Engineer @ Aloft AeroArchitects | Specializing in Regulatory Compliance
4 个月A relationship built on the pillars of integrity will always flourish. Another great article, Mike!
Senior Structures Expert at EASA
4 个月Be open minded. Be curious. Be patient. Be respectful. Be professional. On both sides of the table. And don’t forget to enjoy the ride as much as possible ??.