Who should be the Military Type Certificate Holder?

The aircraft Type Certificate Holder (TCH), an ubiquitous term creating some challenges in the military context when deciding who should hold it.?

But why??To unravel the implications, we need to go back to basics.???This paper explores the issues and concludes that the intent is that the TCH is the organization who can (either on their own, or via sub-contract management):

·???Demonstrate compliance with applicable design specifications, and

·???Maintain design records of the certified configuration, and

·???Monitor in-service safety standards and support issuance of any ADs, and

·???Control the integrity of parts (via 21.A.4).??????????????????????????????????

Ultimately, who the TCH shall be is a matter of choice for the issuing Authority - and there is no right or wrong in the current EMARs, but there are implications to be considered carefully.

1.???Background

In 2016 (in support of Edition 1.1 of EMAR21) we published?Rev 1 of this paper?exploring 6 scenarios on how EMAR 21 could cater for the way various Military Aviation Authorities (MAAs) allocate obligations to the Military Type Certificate Holder (MTCH).?Eventually, Option 2 was the chosen path in Edition 1.2 of EMAR 21, i.e. it expanded 21.A.14 from the civil approach to also provide the option for the MTCH to be allocated to a Government Organisation, who can sub-contract any required support from an approved Design Organisation( via 21.A.2).

The result of this amendment to 21.A.14 has realised at least one of the concerns highlighted in that paper, which revolves around the implications of having multiple Type Certificates Holders for the same platform type (e.g. Typhoon, C-17 and civil derived military aircraft such as the A330 MRTT).

The purpose of this paper is to refresh the discussion (with a more focussed approach than what we had in the now archived Rev 1 of this paper) to define what a TC is and then to reflect what it means to be the Holder (i.e. the TCH) of that Type Certificate.

2.???What is a Type Certificate?

?EMAR 21 is derived from EASA Part 21 which, in turn, is derived from ICAO Annex 8 and its supporting Doc 9760.?So, in spite a national difference in lexicon, it makes sense to go back to the source.?Doc 9760 (in Part 1) defines a Type Certificate as “A document issued by a Contracting State to define the design of an aircraft, engine or propeller type and to certify that this design meets the appropriate airworthiness requirements of that State”.?This needs further defining:

• Contracting State:?The aviation authority in one of the 193 countries who contract to promulgate via national regulations the 19 Annexes of the Chicago Convention.?In the scope of Part 21, this authority is initially the “State of Design”?authority, but may also be the “State of Registration” authority, where the State of Design is “The State having jurisdiction over the organization responsible for the type design” and the State of Registration is “The State on whose register the aircraft is entered”
• Appropriate airworthiness requirements:?“The comprehensive and detailed airworthiness codes established, adopted or accepted by a Contracting State for the class of aircraft, engine or propeller under consideration”.?Note, it is not always an indigenous code ... and could, in the case of US DoD acquired aircraft, be a USAF Specification?- if the State of Registration is content with it (i.e. adopted or accepted it).
• ?Type Design:?“The set of data and information necessary to define an aircraft, engine or propeller type for the purpose of airworthiness determination”.?See also 21.A.31 which describes it as a design frozen against a defined configuration baseline, which extends to Design data?(i.e. the as-designed baseline),?Production data (i.e. the as-produced baseline), Maintenance data (i.e. the required as-maintained baseline) and?Operating limitations (i.e. the required as-operated baseline)

?A Type Certificate issued by the State of Registration is often a precondition to that State awarding a Certificate of Airworthiness (CofA) to the tail numbers on their register. I use the word “often”, as the State of Registration may also elect to merely accept/recognise the TC issued by the original State of Design.?See Part 3 Chapter 4 and Part 5 para 2.4 in ICAO Doc 9760 for more information.?

3.???Who is the Type Certificate Holder (TCH)?

The Type Certificate (TC) is awarded to an “Applicant” (i.e. someone who is keen to sell their Product to operators in a State of Registry), who then becomes the “Holder” (i.e. someone with Obligations) of the Type Certificate when it is issued.

ICAO Doc 9760 (in Part 4 para 2.2.2) defines the Applicant for TC as “?an organization, an individual or, where allowed by a State, a representative for that organization or individual. Regardless, the applicant is, for purposes of type certification, the organization or individual that has responsibility for the type design of the aircraft, engine or propeller and in whose name the type certificate will be issued. The applicant should have the technical capability, or have access to a technical capability, to establish and demonstrate compliance of the type design to the applicable airworthiness and environmental standards. In cases of complex design and production of aeronautical products involving multinational agreements, joint ventures, partnerships or similar collaboration, the applicant for a type certificate remains responsible overall for the type design of the aircraft, engine or propeller that is under consideration for a type certificate”.?We can see this intent promulgated in 21.A.14.

So, the TCH is the competent technical organisation who is initially required to (refer 21.A.21) demonstrate compliance with applicable design specifications, and maintain design records of the certified configuration.

In order to retain the Type Certificate, the TCH has certain continued airworthiness obligations.?In EMAR 21 (Edition 2.0)?these obligations are promulgated in 21.A.44 as follows:

• undertake the obligations laid down in 21.A.3A, 21.A.3B, 21.A.4, 21.A.55, 21.A.57, 21.A.61 and 21.A.62; and, for this purpose, shall continue to meet the qualification requirements for eligibility of 21.A.14; and
• specify the marking in accordance with 21 Subpart Q.

The above obligations are summarised in the table below:?

The decision on whom should be the MTCH revolves around how best to manage these initial and continued airworthiness obligations, and closer scrutiny should clearly reveal that ultimately it is only the owner of the design data who is best suited to do so.?Arguably, anyone else will merely be acting as a broker, intermediator or go-between.

4.???Why do some Military Authorities want to hold their own MTC?

?I believe it is historical, i.e. “the way we always did it”.? But EMAR’s are, for many military regulators, a new way of doing things, so let us consider each argument in turn:

1. "To retain sovereignty". Sovereignty can be defined as the supreme authority within a territory or state. It is assigned to the person, body, or institution that has the ultimate authority over other people in order to establish a law or change an existing law. Now, in the civil word, ICAO has no sovereignty.?The local authorities do (as their existence is established in law) and, to operate internationally,?they?contract?(see para 2 above) to abide w with the playground rules set in the 9 Annexes of the Chicago Convention.?Within its borders, the State of Registration has sovereignty, as (as is?evident in difference aircraft configurations of the same type registered by difference operators.?The military are not bound by ICAO so have even more flexibility (unless they want to fly in civil airspace).
2. "To operate (when needed) outside the limitations of the Type Certificate Data Sheet". EMAR21 Subparts E would classify this as an STC?.?STCs are reserved for all changes to the TC (and its supporting TCDS), not just for configuration (i.e. design) changes.
3. "To incorporate all major changes into an update of the current Military Type Certificate". Again, a historical approach which on its surface has merits.?However, it creates industry monopolies, has IPR challenges and restricts bespoke solutions.?Most especially, it ignores the primary purpose of EMAR 21 Subpart E, which facilitates an ideal solution to adding military capabilities to a civil derived aircraft (i.e. there is already a single TCH for the Type, so all that is needed is to allocate STCH obligations via 21.A.118A).
4. "EMARs are requirements (not regulations) and are therefore not enshrined in law (i.e. only enforceable via contracts on Design Organisations and Post-Design Support (PDS) Organisations)". Although there are a few countries who have been able to ensure their version of EMARs in law, this is an argument often used to substantiate the use of EMAR 21.A.14(d).??The argument has its merits, especially if we attempt to flow the 21.A.44 obligations back to the OEMs after we have signed the acquisition contract…and that is often why we need an intermediator to contractually manage it (see end of para 2 and para 3 above). However, the time to negotiate the 21.A.44 obligations is as a condition of the initial procurement contract award, always remembering 2 things: (a) Any substantial costs associated with the obligations are really down to the fact that the OEM did not do it right the first time round (so these obligations are incentives), and (b)?The State of Design authority should have similar obligations on the OEMs, and our MAA should use them to exercise their jurisdiction on behalf of all affected operators. It is important to also note in the civilian world, that EASA has no jurisdiction of Boeing as the TCH, just as the FAA has no jurisdiction over Airbus as the TCH.?Enforcement occurs via mutual respect between the State of Registration Authorities, any of which can suspend a CofA or withdraw their TC (thus suspending the CofA for all tail number on their registry)
5. "Military want to be able to change the TC without OEM involvement". That is exactly why we have EMAR 21 Subparts D, E and M,?It provides operators of the same type with options without being at the mercy of a potentially monopolising OEM.
6. "The MTCH is accountable for Type Airworthiness (which includes certification and configuration management)". True but only for the certification records (and therefore the supporting aircraft configuration) of the original Type.??STC holders have similar obligations, see 21.A.118A.?This allows bespoke configurations (for commercial or for military advantages) of the same type, with each Certificate Holder (refer 21.A.1 and Subparts B-E, M & O) “owning” their own design data.?Configuration Management of the tail numbers is managed via the CAMO’s Continuing Airworthiness Record [M.A.305(c)].
7. "Many US aircraft are acquired without a TC". Also true, which means the State for Registry cannot merely validate the TC issued by the State of Design (see Part 5 para 2.4 in ICAO Doc 9760 for more information).?This argument therefore does not impact who the TCH is, as it is the State of Registry who awards the TC.?Two significant type certification challenges though are: (a)??Many US military aircraft do not have a clearly defined Type Certification Basis, relying instead on some sort of requirements specification agreed with the primary customer.?(b) Aircraft acquired via Foreign Military Sales (FMS) are often forced to work via the primary customer (e.g. the USAF on C-17) and are thus contractually removed from the real holder of design data.

5.???What happens if there is no TC?

?So, what happens if an aircraft does not have a TC, or if it is relinquished by the TCH? Well, under the civil system the aircraft is then considered to be "orphaned".?An aircraft type (not individual tail numbers only) becomes orphaned when:?

• the legal person holding the Type Certificate (TC) has ceased to exist. The TC automatically becomes invalid by law because there is no one to be in compliance with the TC holders responsibilities [21A.51 (a) 1 and 21A.44]; or
• The TC holder no longer complies with his regulatory obligations. A typical case is when the TC holder loses his DOA, or fails to comply with 21.A.14.?This makes the TC invalid [21A.51(a)1)
• The TC holder has surrendered the TC. This also makes the TC invalid (refer 21A.51(a)(2)).

Options available for dealing with an orphaned aircraft include:

• TC transferred to another DOA:?The preferred option (under 21.A.47) but needs volunteering DO, who will need to accept the 21.A.44 obligations … and is likely to charge the remaining operators for that service.
• Or, the obligations are taken on by the State.?EASA does this via?Specific Airworthiness Specifications?. The SAS consists of?the original State of Design’s TCDS ,?Applicable Airworthiness Directives [21.A.3B], Instructions for reporting occurrences [21.A.3A],?Any additional limitations including a prohibition from commercial activities, Maintenance data is “frozen” but still considered approved, Engineering data is “frozen” but still considered as proved, so can be used by production organisations for replacement parts. As there is no DAH-PO agreement under 21.A.4 (due to no DO), EASA does not require Form 1 for parts to be installed.
• Or, the aircraft is flown under a permanent Permit to Fly (21Subpart P) and a Restricted CofA (21Subpart H).?This is the least preferred option, but often used for museum aircraft.

6.???Conclusion

?The intent is that the TCH is the organization who can (either on their own, or via sub-contract management):

• Demonstrate compliance with applicable regulations
• Maintain design records of the certified configuration
• Monitor in-service safety standards (e.g.?Defects, Occurrences, etc.)?and support the Authority in the issuance of any ADs
• Control the integrity of parts (via the 21.A.4 DAH-PO agreement)?????????????????????????????

With my industry hat on: I am more than happy for each military authority to hold their own TC,?and subcontract my DO (at a price, of course) to assist each of them fulfil their TCH?obligations.

With my Air Force cap on: I need to consider the intent behind the TCH?obligations and what the most cost-effective way is to meet that intent, and:

• Whether I should be paying for this service at all. In the civil world it is a condition of Type Certification and is therefore also in EMAR 21 (if we correctly approach our procurement contracts).??Fundamentally, the 21.A.44 obligations only cost a DO money if/where they did not get it right the first time round (consider the Qantas A380 engine failure)
• If my organization should really be assuming the obligations (and associated liabilities) if things start going wrong (consider the type certified 737Max).
• If we have multiple TCH for the same type (consider Typhoon and C-17), questions that need considering include: (a)?How do we share occurrences (21.A.3A) across our borders??Ultimately, the OEM is best suited to collate all occurrence to his Type Design and to consider how to prevent re-occurrence to all tail numbers, not just the tail numbers of single operator.?Remember, we will never live long enough to learn all lessons on our own. (b)?How do multiple government TCHs contractually rely (as middlemen/post-offices) on the same OEM for the same 21.A.44 obligations.
• How I should document my TCH obligations. Some prefer to do this in a "Military Type Certificate Holder Exposition" (MTCHOE) and then extend the approach to consolidate all aircraft changes in a bespoke TC for their configuration. This is not the intent of 21Subpart B , D and M . Tail number (or fleet) configuration management is a CAMO task (refer M.A.305(c)). This approach can create contractual confusion and is short sighted if you would like to, in the future, sell your aircraft de-modified closer back to TC status (e.g. by removing a secret modification). I would recommend rather documenting the obligations in a "Continued Airworthiness Exposition" where you can address the legal/contractual management of the obligations of the individual Design Approval Holder's TC (21.A.44) and any subsequent Minor Changes (21.A.109), STCs (21.A.108A) and Repairs (21.A.451), as well as any installed TSO items (21.A.609).

Ultimately, who the TCH shall be is a matter of choice and there is no right or wrong in the EMARs .... but I definitely have my preference.

Footnotes:

• The civil approach is definitely for all authorities to award their TCH to (i) a single entity and (ii) the original design authority, until such time as it is relinquished (see para 5).
• For legacy military aircraft types where there is no clear TCH, I suggest the focus should not be so much on who is the TCH, but who and how we fulfil/managed the individual 21.A.44 obligations. Focus on the intent, not the certificate.