Rules vs. Cases: FAA Undue Burdens

Often, we think about rules and regulations as concrete: even if the language is fuzzy (and needs interpretation), in theory there is a single "right" interpretation of the rule, and we can know if we're following the rule. One regulation where this is not the case is the Federal Aviation Administration's (FAA) rule that moving work between factories can cause "no undue burden" to the FAA to monitor the work.

I encountered this issue when cleaning up a regulatory violation at my former company: the violation was inadvertent, we disclosed it to the FAA, and we needed to 1) catch up on undue-burden assessment requests, and 2) put better processes in-place to avoid the issue coming up again. Like other "special" projects, I was pulled in to help on this one because I could quickly absorb the data and turn it into actions and close the issues. This post will have a brief discussion on how I solved the issues, and a longer musing on the difficulty in this regulation.

Boston Logan airport's control tower

Catching the FAA Up

Since a rule update in 2016, the FAA defined a specific document that every aircraft / aircraft part manufacturer had to fill out when transferring manufacturing to a non-US factory. This could be down the road from an existing factory, from one non-US country to another non-US country, or from the US to a non-US country. Any holder of a "Technical Standard Order" (TSO) or other part-manufacturing authority (there are several varieties depending on whether a part is reverse-engineered, designed from scratch, and the scope of the parts involved) had to notify the FAA and get approval before moving the parts: 

21.609 Location of or change to manufacturing facilities.
(a) An applicant may obtain a TSO authorization for manufacturing facilities located outside of the United States if the FAA finds no undue burden in administering the applicable requirements of Title 49 U.S.C. and this subchapter.
(b) The TSO authorization holder must obtain FAA approval before making any changes to the location of any of its manufacturing facilities.
(c) The TSO authorization holder must immediately notify the FAA, in writing, of any change to the manufacturing facilities that may affect the inspection, conformity, or airworthiness of its product or article.

For a host of reasons, the company had missed some disclosures and had to close the gap. I was given a list of every part we had purchased in the 2016-present time-frame and the list of suppliers and had to check the tens of thousands of parts for compliance to the regulation. With some Excel lookups I was able to pull in the parts where the FAA regulation was applicable, where they were manufactured by a non-US supplier, and where they were newly-manufactured by that supplier since 2016.

Breadcrumbs

Leaving myself clues or "breadcrumbs" throughout this process was critical: when had I pulled a particular set of data? Could a purchase order have been placed the following day which invalidated my excluding a part? Had I looked back far enough in time? I fielded many questions like these and needed to know precisely why the analysis came to a conclusion for every part. A previous compliance review had missed several parts, and I found myself cursing the people who had run it because the breadcrumbs weren't there on why certain parts had been excluded.

Closing the Actions

After we had a final list of parts that needed retroactive submittals, I had to organize them such that we wouldn't overwhelm the Engineering team or the FAA. I settled on creating a list of all of the part numbers which had to go, pulled together the necessary FAA data for them, and added some additional columns to the sheet so that I knew whether the parts were submitted to the FAA (done from my perspective), working within our team, or not yet in-work (to avoid overwhelm). I got to the point where I could easily use my follow-up tools to confirm status and spend 5-10 minutes sending off the next tranche of parts when the team was ready for them.

I also ran several remedial training courses for our Supply Chain team as part of our corrective actions, as well as working with the various systematic mistake-proofing tools (highlighting better in work-transfer reviews, using the Enterprise Resource Planning tool SAP, etc.).

Why Does the FAA Need Undue-Burden Plans?

To me a frustrating part of this project was that we couldn't self-approve any of the transfers. If we knew that the FAA already had bilateral agreements with a country (so they recognized the host country's certification that a manufacturer was safe) or the same manufacturer was moving down the road to a larger building, we couldn't say "this won't cause a burden to the FAA". They had to officially review it themselves. Why? Per Order 8100.11D, [emphasis added in Italics]

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9. Factors That Affect the FAA’s Burden. Because of the FAA’s constantly changing resources, it is difficult to categorize those burdens on the FAA that are undue and those that are not...

a. Any of the following conditions may create an undue burden:

1. Shortages of FAA funds. Sometimes, the FAA needs to transfer resources from international to domestic projects because of an increase in domestic program levels, which then can create an undue burden to oversee new or existing international programs.
2. Low managing office staffing levels or other human resource restrictions...

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So an application might be approved one day, but if it had been submitted the following day after e.g. Congress had cut their funding or a key person retired an identical application might have been denied as causing an undue burden! This makes it very difficult to plan on work transfers, because often enough must be known to fill out the report that the project must be far along before anyone can put in an application. If a simple rules-based method were in place, or at least one with carve-outs for obvious approvals, the FAA would have less work and business would have more certainty.

If you have any comments, please reach out to me at blog@saprobst.com or this page is cross-posted at LinkedIn and you can leave a comment there.