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LEGAL SPIN


BY JASON DICKSTEIN


BY JASON DICKSTEIN


FAA Tries to Modernize the Industry one ICA at a Time


I


n the February/March 2012 issue of this magazine, we reported that the FAA would soon publish a Policy Statement on Instructions for Continuous Airworthiness (ICAs). That policy statement has been published and it takes a significant first step in modernizing the FAA’s approach to these instructions. I have been listening to people complain about problems with ICAs for twenty years, and the industry


literature makes it clear that many of these complaints have been with us for much longer. The current Administration is taking on some of these issues and they are trying to knock them down, one at a time. The ICA Policy Statement is a great example of a reasonable approach to policy making because of what it says and also because of what it does not say.


What it Says


Known as “PS-AIR-21.50-01: Inappropriate DAH Restrictions on the Use and Availability of ICA),” the FAA policy was written in response to the growing practice of manufacturers licensing their manuals on the condition that the licensee repair station or air carrier/operator pledge to refrain from using competitive products like DER repairs or PMA parts. FAA regulations require certain design approval applicants to produce ICAs. When they do, the


regulations require them to have a method for distributing the ICAs, and any amendments to the ICAs. The method has t be submitted to the FAA. In the past the FAA had no metrics for assessing when a method of distribution was acceptable. This policy provides the first example of such a set of metrics. At its core, the policy forbids companies that are required to distribute ICAs from using this de facto monopoly to deny operators the power to use FAA approved articles. If the FAA has approved the article, then it would undermines FAA actions to approve a policy that forbids use of the FAA-approved article. Therefore, the FAA finds it unacceptable for the FAA-acceptable distribution methods to undermine FAA approvals. In many cases, licensing agreements that use the de facto monopoly afforded by ICAs to leverage the publisher into a competitive advantage in other related markets (like the market for aftermarket parts) create a potential antitrust problem. The FAA policy keeps the FAA out of such potential antitrust problems.


What it Does Not Say There have been complaints about this policy. We would not be human if we did not complain. But I was surprised at the nature of the complaints. I fully expected to hear complaints from large design approval holders who were concerned about losing the ability to control their ICAs; so I was surprised when I spoke to several OEMs who supported the FAA’s policy statement. They told me that they felt it leveled the playing field and helped to discourage practices that undermined safety.


Instead, the loudest complaints that I heard were from parties in the maintenance community who complained that the policy statement did not address all of the issues that needed to be addressed. This is an interesting complaint. I was part of the team that worked with the FAA to help make the ICA policy


a reality, so I bore witness to the FAA’s debates about which issues to address and how mar t go with them. One important issue they discussed was whether to address certain other burning issues, like treatment of Component Maintenance Manuals (CMMs) and ultimately they decided to leave that issue for another guidance document. The FAA has some strong ideas on the subject - but they wanted to make sure that they did not encumber one non-controversial idea with a much more controversial idea that could have encumbered the policy statement and potentially prevented it from moving forward. The FAA employees chose to recognize the politics of ICAs and to publish a useful and successful document rather that bog down the document with additional issues.


What’s Next for ICAs? The fact that the FAA chose to pay attention to political reality does not mean that they have abandoned


56 Aviation Maintenance | avm-mag.com | June / July 2012


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