[00:00:01] Speaker 00:
Case number 16-1202, Aviation Suppliers Association, Inc.

[00:00:07] Speaker 00:
Petitioner versus Michael P. Horta, Administrator at L. Mr. Dick Stein for the petitioner, Mr. Capel for the respondents.

[00:00:33] Speaker 07:
Good morning.

[00:00:34] Speaker 07:
May it please the court?

[00:00:35] Speaker 07:
My name is Jason Dickstein.

[00:00:36] Speaker 07:
I represent the Aviation Suppliers Association, or ASA.

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The court has asked us in a notice on Wednesday to discuss mootness.

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And with the court's permission, I'd like to skip past the statement of the case and jump right into the mootness argument.

[00:00:58] Speaker 07:
Thank you.

[00:01:00] Speaker 07:
The relevant standard for mootness is going to be found in Los Angeles County versus Davis, the United States Supreme Court level, and in cases like Doe v. Harris at the DC Circuit level.

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And it establishes that there are two conditions that must be met in order for the court to establish mootness, in order to establish or in order to dismiss a case as moot.

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The first of these is that there is no reasonable expectation that the violation will recur.

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And the second is that it must be plain that the mooting action has completely and irrevocably eradicated the effects of the alleged violation.

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And in this case, to be blunt, notice 8900.380 does not render this case moot.

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For starters, the notice is temporary.

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The notice expires this August, August of 2017.

[00:01:58] Speaker 04:
Suppose that you received insurance, let's say, credible insurance.

[00:02:15] Speaker 04:
in the document itself, it would be made permanent with, I guess, exchange seven to the

[00:02:25] Speaker 06:
You're right, Your Honor.

[00:02:28] Speaker 07:
The document itself says that it will be made permanent in change seven to the maintenance annex guidance.

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For starters, there is no schedule currently for a change seven to come forth.

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And in addition, there is no legal obligation for the FAA and the European Aviation Safety Agency to agree to a revision seven.

[00:02:50] Speaker 02:
I would have thought one of your answers to Judge Williams would have been, it doesn't mood it because there's nothing in the notice that says ESA agrees to it, right?

[00:03:05] Speaker 07:
Yes, you're perfectly right, Your Honor.

[00:03:11] Speaker 07:
under the American Steel – I'm sorry, I'm going to have to look at the citation on this one to make sure I get it right.

[00:03:20] Speaker 02:
Well, suppose – just to follow up a little further with Judge Williams' question – suppose that counsel for the FAA tells us not only that it will be in Act 7, but that the European agency agrees to it.

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Does that moot it?

[00:03:36] Speaker 07:
It doesn't, and it's going to not mood it for two reasons.

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First of all,

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under the American Iron and Steel Institute versus EPA case, 115 F3rd, 979, that was a situation where the EPA had actually superseded a permissible exposure level for mercury.

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And in that case, the court pointed out that the agency's subsequent statement could be withdrawn, it could be stricken down by a reviewing court, or it could be ignored by local EPA officials.

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Similarly here, a notice which is issued with no process whatsoever could also be rescinded with no process whatsoever.

[00:04:20] Speaker 02:
No, but my question was if FA counsel tells this court

[00:04:27] Speaker 02:
that it will be included in the MAG, and the European agency agrees, tells this court that.

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And we put it in our opinion.

[00:04:36] Speaker 07:
And if that is the situation, then we still have a problem, Your Honor.

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And the reason for that is because the notice itself didn't fix the problem.

[00:04:47] Speaker 02:
The notice- I thought you said in the brief that it did, no?

[00:04:51] Speaker 07:
The notice attempted to fix the problem.

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And actually, if you look in the opening brief at pages 59 and 60, we say that it did so ineffectively.

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And I apologize.

[00:05:04] Speaker 04:
It was based on the fact that it was temporary with no assurance of it becoming permanent.

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Because mootness at that point in time had not been pled or there was no motion to dismiss for mootness, we didn't get into the details because we didn't want to waste the court's time.

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But in fact, the notice 8900.380

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directs that a repair station can issue an 8130-3, but repair stations issue 8130-3s according to the FAA's instructions, and the FAA's instructions are published in FAA order 8130.21h.

[00:05:48] Speaker 07:
Under that order, there are actually several different types of 8130-3 tags.

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A repair station is allowed to issue an 8130 that declares that a part is repaired, modified, or inspected

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but they're not allowed to declare a part to be new.

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And if you take a look in your appendix at page 102, you will see the specific language of the maintenance annex guidance that is offensive to us.

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That actually directs that it must be an 8130 that is issued to declare the part new.

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If you take a look in the FAA order that I mentioned, 8130- Just to simplify, but to make sure I understand this,

[00:06:36] Speaker 01:
Your concern about this whole change in the guidance is that it requires the repair stations to be willing to issue an 8130 before installing new components, correct?

[00:06:53] Speaker 01:
We're only talking about new components.

[00:06:55] Speaker 07:
No, Your Honor, I'm sorry.

[00:06:58] Speaker 07:
There are two sorts of documentations involved in this, and I think that's probably very confusing.

[00:07:06] Speaker 01:
Or the FAA equivalent of 8130.

[00:07:10] Speaker 02:
It's definitely confusing, because until you just said this, I did not understand that there were two different 8130s.

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The 8130 is used as sort of a hybrid document.

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It's used at the end of maintenance as an approval for return to service.

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So a repair station that does work completes one of these tags to say, I completed my work.

[00:07:34] Speaker 02:
But that's not the issue in this case, is it?

[00:07:37] Speaker 07:
Correct, it is not.

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In addition, the form is also used in some cases to document parts as being new, airworthy parts.

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The parts in the United States, under US law, typically don't have to be documented that way.

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Europeans prefer them to be documented that way.

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And when they are documented as new, until a year ago, the only people that could document them as new were the FAA and the FAA's own designees.

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One year ago, roughly a year ago on October of 2015, the FAA promulgated a new rule that will allow manufacturers upon application to begin documenting parts as new.

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And one of the problems is that we have billions of dollars of inventory in warehouses that don't have these tags.

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These are parts that were made by FAA approved manufacturers.

[00:08:40] Speaker 02:
Doesn't the new notice allow the repair station now to issue the A130?

[00:08:47] Speaker 07:
It allows them to issue the form, the 8130, but it doesn't allow them to tag the parts as new, which is what the maintenance annex guidance requires.

[00:08:56] Speaker 07:
So the maintenance annex guidance requires that the part be tagged as new, which is still a function that only a manufacturer or the FAA itself can do.

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The repair stations under the existing order, 8130.21H, only have the authority to tag it under the non-new categories, inspected, repaired, altered, modified, overhauled.

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So basically they're tagging it in a way that they can't accept under the MAG.

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So there's a disconnect and that's actually one of the problems with the notice.

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I wish the notice had gone through notice and comment so that we could have actually pointed out to the FAA that the notice isn't getting us to an end point that we need to be at.

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So the notice has problems because it's temporary.

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The notice has problems because it doesn't actually fix the problem, but the notice also represents the sort of voluntary cessation that the Atlantic rich field versus United States case, which this circuit decided, has described as a voluntary cessation.

[00:10:08] Speaker 07:
And while we have the hypothetical of what if the FAA was to come forth and say, we're going to be committed to a revision seven with the Europeans, the fact is that the FAA hasn't done that, and they can't do that without some sort of acquiescence by the European Aviation Safety Agency.

[00:10:28] Speaker 01:
Are manufacturers not doing this?

[00:10:31] Speaker 01:
This has been out for a little while now.

[00:10:33] Speaker 01:
Are manufacturers just not doing this?

[00:10:36] Speaker 01:
They're just spewing out parts that can't be used?

[00:10:38] Speaker 07:
I apologize that I'm going to bring in matters that are outside of the record, but to answer your question, I will tell you that manufacturers, some have started to do this.

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However, large manufacturers like Boeing itself have said that they do not want to take advantage of the 14 CFR 21.137-0 privilege because of some of the international concerns.

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It was fully negotiated with the Europeans.

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We unfortunately failed to fully negotiate it with the rest of the world, and other countries like China and Japan have actually said that they are uncomfortable with that sort of 8130.

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So in addition to the existing inventories, the billions of dollars of existing inventory that is untagged,

[00:11:25] Speaker 07:
We still have parts coming out of some companies that are either untagged or that don't have manufacturer's tags, but instead continue to have DAR tags.

[00:11:36] Speaker 01:
Now, this only applies to that percentage of parts that a repair shop is going to put into an EU plane that has broken down in the US, right?

[00:11:47] Speaker 07:
In theory, that is the case.

[00:11:49] Speaker 07:
However, in practice, repair stations typically, when they have both certifications, have to sign off for both jurisdictions.

[00:12:02] Speaker 01:
What percentage of the planes that a repair shop prepares are EU ones that have broken down here?

[00:12:08] Speaker 01:
It's got to be a small one compared to all the U.S.

[00:12:10] Speaker 01:
planes and all the other international planes.

[00:12:12] Speaker 06:
And, Your Honor, you don't issue an 8130-3 for a complete aircraft.

[00:12:16] Speaker 06:
You issue an 8130-348.

[00:12:17] Speaker 02:
What did you just say?

[00:12:21] Speaker 02:
I just didn't hear you.

[00:12:22] Speaker 07:
You don't do what?

[00:12:24] Speaker 07:
Typically, repair stations work on components.

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So they'll issue 8130-3 tags for components.

[00:12:31] Speaker 07:
You don't issue that tag for a complete aircraft.

[00:12:34] Speaker 07:
So much of the work that's done in the United States by repair stations, they're not working on a whole aircraft.

[00:12:40] Speaker 07:
They're actually working on a component, like, say, a terrain collision avoidance system, a TCAS system.

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So they'll get parts to install into that TCAS system.

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Under the maintenance annex guidance, each of those parts needs one of these tags, the 8130-3.

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And one of the problems is that in practice, we haven't required that in the United States.

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In the law, we haven't required that in the United States.

[00:13:05] Speaker 07:
So there's a lot of these parts sitting in warehouses today.

[00:13:11] Speaker 01:
Those parts that you guys have that are sitting in the repair shops can be used in probably 90, 95% of the planes out there, right?

[00:13:19] Speaker 01:
I don't know how many broken down EU planes there are here in the US, but it's gotta be a small percentage.

[00:13:24] Speaker 01:
And so why can't your client's inventory, your member's inventory, be used for all of these other planes that don't have this requirement?

[00:13:35] Speaker 07:
And the reason for that is because most repair stations may not actually know where that terrain collision avoidance system is going.

[00:13:44] Speaker 07:
Even an operator may not know.

[00:13:46] Speaker 07:
So if your client is Delta, your client Delta is going to bring that terrain collision avoidance system back in.

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And Delta, who does its operations through Delta Technical Operations, Delta TechOps is actually going to ask for that to be dual certified.

[00:14:01] Speaker 07:
Because they might put it on their own aircraft,

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but they also do maintenance for other air carriers, including European carriers.

[00:14:09] Speaker 07:
So they're going to ask for it to be dual-certified so they can put it on whichever aircraft ends up needing it.

[00:14:15] Speaker 02:
Well, does that mean that... But does that mean you talked about Boeing making parts?

[00:14:22] Speaker 02:
So the parts you're talking about here, I assume, are parts that go into Boeing aircrafts owned by European carriers, right?

[00:14:30] Speaker 02:
Is that right?

[00:14:31] Speaker 02:
I mean, if the European airplane that's here is an Airbus, that's not part of this, correct?

[00:14:38] Speaker 02:
Or is it?

[00:14:38] Speaker 07:
That would only be – well, yes, you're right.

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That is not part of this.

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And the reason is because the Airbus part doesn't get an 81.

[00:14:45] Speaker 02:
So the universe is even smaller than you indicated in answer to Judge Bullitt, right?

[00:14:53] Speaker 02:
We're only talking about

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about American-made airplanes owned by European carriers there in the United States, right?

[00:15:03] Speaker 04:
I thought you were saying that the repair shops assembled the whole system for installation and planning, and at the time they did the assembly, they did not know

[00:15:32] Speaker 07:
That's absolutely correct.

[00:15:33] Speaker 07:
And in fact, that TCAS unit that I mentioned as my example may go over to Delta Tech Ops and sit on a shelf until the next aircraft that needs a TCAS, which might be a Delta aircraft, so it might be unregistered, or it might be

[00:15:49] Speaker 07:
Well, it wouldn't be British Airways.

[00:15:51] Speaker 07:
I don't think they do British Airways.

[00:15:52] Speaker 07:
But it might be, say, a KLM aircraft.

[00:15:56] Speaker 07:
And at that point in time, because it's an EU-registered aircraft, they need it to be European certified.

[00:16:02] Speaker 07:
As a practical matter, the way that they make sure they're ready for this is they ask for dual certification.

[00:16:09] Speaker 01:
Why wouldn't they just have, here's the bin of things that can go in the EU ones, and here's the ones?

[00:16:14] Speaker 01:
If this is a more expensive process, I would think.

[00:16:17] Speaker 01:
that these companies would have the separate bin for the EU pieces and these cheaper, because they're not going to require this form and all that processing, parts that can go in everything else.

[00:16:28] Speaker 01:
It seems nuts to me that they would want to spend all this extra money when it's only a tiny portion of their inventory that's going to go where this requirement applies.

[00:16:38] Speaker 07:
And I wish that they would follow your business model, but a TCAS unit might cost $100,000.

[00:16:46] Speaker 07:
If you have one TCAS unit that's certified for both European and U.S.

[00:16:51] Speaker 07:
registered aircraft, now it's ready to go on whoever's aircraft comes in and needs it.

[00:16:57] Speaker 07:
If you have to have two separate inventories, then for that one unit, now you've got $200,000 worth of inventory instead of $100,000 worth of inventory.

[00:17:05] Speaker 07:
So maintaining two separate inventories becomes tremendously expensive for the repair stations that need to maintain inventories, not to mention the warehouse space that's necessary to hold two separate dual inventories.

[00:17:20] Speaker 07:
And that's one of the reasons why operators and repair stations are going to be looking for dual certified parts and why, as a practical matter in the industry, that dual certification has become so important.

[00:17:34] Speaker 01:
And can I ask you what, if the EU is requiring this, regardless, how would any ruling affect, redress, either be caused by or redressed by this, caused by the FAA guidance or redressed by this court?

[00:17:50] Speaker 01:
Because at the end of the day, those repair shops want, that's what you just told us, they want the tag.

[00:17:57] Speaker 07:
They want the dual certification for the parts that have been worked on.

[00:18:00] Speaker 01:
They want the dual certification that complies with the EU regulations, right?

[00:18:06] Speaker 01:
And if the EU regulations require it, then

[00:18:10] Speaker 01:
They're gonna insist on it anyhow, are they not?

[00:18:12] Speaker 07:
And there's two answers to that.

[00:18:13] Speaker 07:
The first answer is the E-regulations don't really require it.

[00:18:18] Speaker 07:
They require it for certain types of parts, but they have a whole list of exceptions.

[00:18:23] Speaker 07:
The EASA regulation that applies here is EASA 145.A.42.

[00:18:28] Speaker 01:
I couldn't figure out which exception you thought applied.

[00:18:33] Speaker 07:
The main one that actually gets used is the unserviceable exception.

[00:18:38] Speaker 01:
But that's just categorization.

[00:18:40] Speaker 01:
And then section B of that very provision says that it's going to have to comply with regulatory requirements before it can be put into service.

[00:18:48] Speaker 01:
So you were quoting, I think, section A of that exception, which had the three categories of serviceable, unserviceable, and salvageable.

[00:18:56] Speaker 01:
But it's section B right below it that says, look, it's not going in the plane.

[00:19:01] Speaker 01:
The plane's not going anywhere unless it meets the requirements.

[00:19:05] Speaker 01:
So it's not an exception from the requirement.

[00:19:07] Speaker 07:
And actually, we've got two stages, if you will.

[00:19:10] Speaker 07:
The first stage is getting the part in the door.

[00:19:14] Speaker 07:
In order to get the part in the door, for a dual certified repair station, first they've got to get a part in the door.

[00:19:24] Speaker 07:
And that's where A serves as a categorization is under 145, I'm sorry, 145.A.42A, you've got to get the part into the repair station by putting it into a category.

[00:19:39] Speaker 07:
Now, if the part fits into an unserviceable category, there are other regulations that actually say you can't go to that B, the installation, until you've actually investigated the part and found it to be airworthy.

[00:19:52] Speaker 01:
And you're the one that just said they're not going to have other parts there that don't meet the tag requirement.

[00:19:58] Speaker 01:
So why would they bring it in in the first place?

[00:20:00] Speaker 01:
And even if they bring it in, they're going to, I guess, use it for some other plane.

[00:20:04] Speaker 01:
But they aren't going to put it in an EU plane unless it's got that tag.

[00:20:07] Speaker 01:
So at the end of the day, if they don't want the two dual inventories, they're going to insist on the tag.

[00:20:14] Speaker 07:
But the European system actually has the tag for that A1 provision?

[00:20:20] Speaker 07:
And, but it doesn't actually require the tag across the board.

[00:20:24] Speaker 07:
It creates safety valves that allow you to bring in an untagged part.

[00:20:30] Speaker 02:
Doesn't this all mean, excuse me, doesn't this, what your clients want is dual certification, correct?

[00:20:37] Speaker 02:
That's what they want.

[00:20:38] Speaker 07:
Well, my clients want to be able to sell the parts from their inventories, repair station.

[00:20:43] Speaker 02:
My question is, if

[00:20:45] Speaker 02:
They want to be able to sell parts that can be installed in European permitted aircraft, right?

[00:20:53] Speaker 02:
But doesn't that mean that FAA is right that you lack standing here because that's a judgment only the European agency can make?

[00:21:02] Speaker 02:
It's just not redressable in this court.

[00:21:04] Speaker 07:
Well, actually, as I said when I started answering Judge Millett's question, there's really two responses.

[00:21:10] Speaker 07:
The first response is that there's safety valves in the European regulations.

[00:21:13] Speaker 07:
Could you put this to me?

[00:21:14] Speaker 01:
Yeah, show me.

[00:21:15] Speaker 01:
That's what we were talking about.

[00:21:16] Speaker 01:
I didn't think it fit.

[00:21:20] Speaker 01:
The safety valve that applies to your situation, that's the only one.

[00:21:36] Speaker 03:
Okay, safety valve is going to be 145.842.

[00:21:38] Speaker 03:
I apologize, let me find that.

[00:22:02] Speaker 01:
145.8.42?

[00:22:05] Speaker 01:
Yes.

[00:22:06] Speaker 01:
Right, that's where A says, here's how you classify the components, but B says, prior to installation of one of those components, the organization shall ensure that the particular component is eligible to be fitted, which puts us right back into the 81, that's not a safety valve, that puts us right back into the 8130 requirement, does it not?

[00:22:23] Speaker 07:
I apologize.

[00:22:24] Speaker 07:
I see where your confusion is.

[00:22:27] Speaker 07:
And I should have explained the difference between bringing the part in and eligibility.

[00:22:32] Speaker 07:
Eligibility is usually a separate function from bringing the part in and categorizing it.

[00:22:39] Speaker 07:
The normal way that someone's going to find eligibility is either through a statement of eligibility.

[00:22:44] Speaker 07:
So PMA parts, for example, are required to have statements of eligibility.

[00:22:48] Speaker 07:
And that tells you it's acceptable for this aircraft.

[00:22:51] Speaker 07:
Normally, though, the repair station is actually going to look into the repair manual and see what's the part number that's eligible for this repair, and that's how they're going to decide if it's eligible.

[00:23:03] Speaker 01:
It's going to be eligible if it's got the tag.

[00:23:05] Speaker 01:
It's going to be ineligible if it doesn't.

[00:23:09] Speaker 07:
I'm sorry to say no to you, Your Honor, but eligibility within the terms of art used in the industry is going to be different from the documentation.

[00:23:20] Speaker 01:
This is the language of the European Union.

[00:23:22] Speaker 01:
I don't know if they subscribe to your industry art within the United States, but they've been quite clear that you can't install these things unless they have this form, whether it's the FAA equivalent or the EU one.

[00:23:37] Speaker 07:
I guess I don't see any language.

[00:23:39] Speaker 07:
There's a separate regulation that I think you may be alluding to, MA 501, and under the Part M, they actually say you have to have one of these forms unless you fit into an exception.

[00:23:55] Speaker 01:
Right, but you haven't found an exception yet.

[00:23:56] Speaker 07:
And the unless clause cross-references Part 145's exceptions.

[00:24:00] Speaker 01:
Right, but that doesn't sound – saying that components can be segregated into categories is not an exception to a requirement for installation in the plane.

[00:24:11] Speaker 01:
That's what I'm not – you're just pointing to something that says you can group these things into different categories.

[00:24:15] Speaker 01:
There's no language that I see in A that eliminates the requirement that before it goes in the plane,

[00:24:21] Speaker 07:
That's because the B eligibility isn't a documentation requirement.

[00:24:26] Speaker 01:
It's actually a... Pretend there's no B. Show me an A where it says it can go in the airplane without the tag.

[00:24:34] Speaker 01:
You said this is your exception.

[00:24:35] Speaker 07:
There's no clause in the European regulations that says it can't go into the airplane without the tag.

[00:24:41] Speaker 04:
You're saying it's implicit in the opening clause prior to installing installation of a component?

[00:24:49] Speaker 07:
A is the provision that says you distinguish the parts, you categorize the parts.

[00:25:04] Speaker 07:
Elsewhere there are regulations, and I apologize, I can't cite them off the top of my head, that specify that for the parts that are found unsalvageable, they actually have to be subject to some form of maintenance activity, such as an inspection, before they can be found to be serviceable.

[00:25:24] Speaker 07:
Once they are inspected and found to be serviceable, and they can be inspected and found to be unserviceable or unsalvageable,

[00:25:31] Speaker 07:
But if they are inspected and found to be serviceable, then they move into that serviceable category, which are the parts that can be installed.

[00:25:40] Speaker 07:
And actually, there is a guidance material, a GM, published under the EASA system that explains that when that's done internally,

[00:25:49] Speaker 07:
The repair station has the option of either tagging the part internally and then using it, or they can actually write a procedure that allows them to not do the extra tag and just use it.

[00:26:04] Speaker 07:
And the European system works with untagged parts that way just fine.

[00:26:10] Speaker 07:
The fly in the ointment becomes the maintenance annex guidance.

[00:26:15] Speaker 01:
I'm sorry, can I just back up?

[00:26:17] Speaker 01:
Because the special conditions require the form.

[00:26:22] Speaker 07:
No, I'm sorry, the special conditions don't require the form.

[00:26:26] Speaker 07:
And actually, I said earlier that there were two reasons, and that was where I was going with the second reason, is the special conditions between the United States and Europe.

[00:26:35] Speaker 01:
Procedures for the release or approval for return to service that meet the requirements of ESA part 145 for aircraft, and the use of form 8130.3 for aircraft components.

[00:26:45] Speaker 01:
That's special condition 1.1.1.

[00:26:48] Speaker 07:
That's for the approval for return to service.

[00:26:50] Speaker 07:
So after the part's been installed and the work is done,

[00:26:53] Speaker 07:
The repair station has to complete approval for return to service.

[00:26:57] Speaker 01:
And that's what repair stations... But there also has to be the form for the aircraft components.

[00:27:02] Speaker 01:
And then I thought you said you were reliant, you acknowledged there was this requirement, but there were safety valves.

[00:27:08] Speaker 01:
And then when you look at the safety valve and it doesn't have the language, you say, at least as I'm understanding it, you're saying there's no requirement.

[00:27:14] Speaker 01:
So maybe I'm missing a step here.

[00:27:15] Speaker 01:
And doesn't 145.8.50D require the form as well?

[00:27:20] Speaker 07:
I'm sorry, can you give me that citation again?

[00:27:26] Speaker 01:
145.A.50D.

[00:27:27] Speaker 01:
145.A.50D is in DOG.

[00:27:41] Speaker 01:
I'm probably not getting something.

[00:27:43] Speaker 01:
We're going in circles here on, yes, it's here.

[00:27:45] Speaker 01:
There's exceptions.

[00:27:46] Speaker 01:
We look at the exception, and there's no requirement to be an exception from.

[00:27:49] Speaker 07:
And I guess let me kind of walk you through a process, I guess, of a repair.

[00:27:57] Speaker 07:
So Repair Station has a unit that comes in to be repaired.

[00:28:02] Speaker 07:
They're going to need to buy some new parts to install into that component that gets repaired.

[00:28:08] Speaker 07:
Those new parts come in, and they have to verify that they're airworthy when they come in, and they have to also verify that they're eligible for this particular unit before they actually install them.

[00:28:19] Speaker 07:
So they're gonna bring them in, and when they bring them in, they're going to fall under 145.8.42, those categories, serviceable, unserviceable, unsalvageable.

[00:28:34] Speaker 07:
And then they're going to look in a repair manual and say, are these eligible?

[00:28:39] Speaker 07:
Because these are the part numbers that are called out in the manual.

[00:28:42] Speaker 07:
And if the answer is yes, they'll go ahead and install those into the unit.

[00:28:46] Speaker 07:
When they're finished with the work that they do, they have to complete an approval for return to service or a maintenance release.

[00:28:55] Speaker 07:
That's a different documentation exercise.

[00:28:57] Speaker 01:
Is that a maintenance release of the repaired item or the components in the repaired item?

[00:29:00] Speaker 07:
No, I'm sorry, this is for the whole work that is done.

[00:29:03] Speaker 01:
Right.

[00:29:04] Speaker 07:
So when they do work on a component, they have to actually fill out a maintenance release for the component that was worked upon.

[00:29:14] Speaker 07:
It is unfortunate that we have done this for ourselves, but we use the 8130-3 for the maintenance release, the approval for return to service at the end of the repair station's work, but also when the FAA issues a tag saying a part is good, which unfortunately they don't do for every single part, but when they do, they also use the same exact form.

[00:29:38] Speaker 07:
It's got two signature blocks, one on the left side and one on the right side of the form.

[00:29:43] Speaker 07:
The right-hand signature block is for approval for return to service.

[00:29:47] Speaker 07:
That's what the repair station does at the end of the work.

[00:29:51] Speaker 07:
When the FAA says a part is good, they sign on the left-hand side.

[00:29:56] Speaker 07:
And the maintenance annex guidance actually says that for your inbound parts, the parts have to be certified as new.

[00:30:02] Speaker 07:
That's that left-hand signature that the FAA and also now manufacturers can make.

[00:30:09] Speaker 07:
Whereas when they're talking about a approval for return to service following maintenance on a component, that is the right-hand signature.

[00:30:21] Speaker 01:
Just understand your theory.

[00:30:24] Speaker 01:
Is it that the EU regs only require that 8130 at the end of the whole repair process?

[00:30:33] Speaker 01:
which is different from the 8130 that their reg is attaching to the components, or do you agree that the EU regs require each piece, the components, the non-standard components have a tag, but that you can find exceptions to it?

[00:30:47] Speaker 01:
I just want to clear that thing up first.

[00:30:49] Speaker 07:
And I wish the system was as clean as you had just described it.

[00:30:53] Speaker 01:
I'm asking how you understand the requirement.

[00:30:57] Speaker 01:
When do you think they have to have, a broken engine has come in, they need new part, non-standard blades or whatever, some non-standard part for that engine, before they can put, and it's a KLM engine.

[00:31:15] Speaker 01:
Before they can repair that, are they only allowed to put the parts into that engine that have the 8130 or FAA equivalent tag?

[00:31:26] Speaker 07:
No, that is not a limit.

[00:31:28] Speaker 07:
Now, let's actually, let me take a European.

[00:31:30] Speaker 01:
That's not an EU limit, but that's a, just to be, I gotta do this in baby steps with you, I'm afraid.

[00:31:34] Speaker 01:
That is your view, is that not an EU requirement, but is required by the guidance that you're challenging.

[00:31:41] Speaker 07:
Correct.

[00:31:42] Speaker 07:
And I think if I walk through this from the European side, it might make things more clear, because I can use two different forms then.

[00:31:48] Speaker 01:
No, you're going to make me more confused at this point.

[00:31:51] Speaker 01:
So in your view, the EU regulation will let them put any old serviceable part in there without a tag, as long as at the end of the repair job, they can attach a tag.

[00:32:06] Speaker 07:
First of all, I don't think I'd go so far as to say any old part.

[00:32:10] Speaker 01:
Any serviceable part.

[00:32:10] Speaker 07:
Because if the part comes in without a tag, then there's actually an obligation on the repair station to inspect it and find it to be serviceable.

[00:32:19] Speaker 07:
And there's a second obligation that they have to confirm that it's an eligible part.

[00:32:24] Speaker 07:
So it's one that's called out in the manufacturer's manual.

[00:32:26] Speaker 01:
That's how the EU regulation sets the thing up.

[00:32:29] Speaker 01:
And did you not begin our conversation today saying these repair shops are not going to take our parts under those conditions?

[00:32:38] Speaker 01:
They don't want to have two different systems in their inventory.

[00:32:42] Speaker 01:
They want it to come in ready to go in either one.

[00:32:48] Speaker 01:
I thought that was your argument.

[00:32:52] Speaker 07:
Sure, they would like to come in and be ready to go.

[00:32:54] Speaker 01:
And that's why they're not taking your stuff under the new guidance?

[00:32:59] Speaker 07:
Well, they're not taking our stuff under the new guidance because we're having trouble getting these 8130s to attach to these parts that haven't had them in the past.

[00:33:08] Speaker 07:
And they don't want to do it themselves.

[00:33:10] Speaker 01:
They want it to come in ready to go.

[00:33:11] Speaker 07:
Well, actually, before the MAG came in,

[00:33:13] Speaker 07:
The Europeans and Americans with dual certified chops were taking those parts in, and they were using other indicia of airworthiness.

[00:33:23] Speaker 07:
So the FAA, for example, has another advisory circular, 20-62E, that lists different indicia of airworthiness that repair stations can use.

[00:33:34] Speaker 07:
And it says you can rely upon things like part markings, or you can rely upon the commercial documentation that shows that it came out of a production approval holder.

[00:33:44] Speaker 07:
These are the things that have historically been used.

[00:33:48] Speaker 04:
You're saying this notice under challenge, the magnet under challenge extinguished all of those.

[00:33:57] Speaker 04:
Is that right?

[00:33:58] Speaker 07:
It did.

[00:33:59] Speaker 07:
And it did so in contravention of the actual annex that it's supposed to be guiding.

[00:34:06] Speaker 07:
So the annex says, as you pointed out, that

[00:34:12] Speaker 07:
If you want to be dual certified, you would apply to the FAA, and the FAA inspector would look at your manual and see, do you meet the 11 special conditions concerning manuals that are listed there?

[00:34:28] Speaker 07:
And then they'll come and they'll inspect and see, do you comply with U.S.

[00:34:31] Speaker 07:
regulations?

[00:34:33] Speaker 07:
Because the Europeans in the maintenance annex said,

[00:34:36] Speaker 07:
If the repair station meets U.S.

[00:34:39] Speaker 07:
regulations plus these special conditions, that's good enough.

[00:34:44] Speaker 07:
And they do require that at the end of the work done by the repair station, the repair station has to sign an approval for return to service on an 8130-3 tag.

[00:34:57] Speaker 07:
But those special conditions didn't say that your inbound parts that will be consumed had to be documented in a special way.

[00:35:07] Speaker 02:
You said that I just have two questions.

[00:35:10] Speaker 02:
Number one is, I understood you saying that the remaining problem is with respect to new parts, right?

[00:35:18] Speaker 07:
Yes, Your Honor.

[00:35:19] Speaker 02:
Okay, but I'm looking at the language of the August notice.

[00:35:23] Speaker 02:
It says inspection may be performed on new parts received on or after October.

[00:35:34] Speaker 02:
It says new parts.

[00:35:36] Speaker 02:
So it's saying here that the project don't have the tag.

[00:35:41] Speaker 02:
That's what the notice says.

[00:35:43] Speaker 07:
And the notice actually tried to fix the problem.

[00:35:49] Speaker 02:
It says new parts.

[00:35:49] Speaker 02:
What didn't it fix?

[00:35:52] Speaker 02:
It didn't fix it as far as I understood you from your brief, because it isn't permanent.

[00:35:57] Speaker 02:
That was the only thing I got from your brief.

[00:36:00] Speaker 07:
Yes, Your Honor.

[00:36:01] Speaker 07:
That was the only thing that we had indicated in the brief.

[00:36:04] Speaker 07:
The other problem, which we didn't brief because mootness was never raised as an issue, was that we have found that the notice isn't working in practice.

[00:36:16] Speaker 02:
Well, forget practice.

[00:36:17] Speaker 02:
We have a case before us based on the record here and the arguments you've made.

[00:36:22] Speaker 02:
And am I right to think

[00:36:24] Speaker 02:
that but for whether or not this notice is permanent and blessed by the Europeans, it would satisfy you, correct?

[00:36:40] Speaker 07:
No, that is not correct because of... It says new parts.

[00:36:44] Speaker 07:
Yes, but it also says that the repair station can issue an 8130 as an approval for return to service.

[00:36:50] Speaker 07:
They're not allowed to certify the parts as new.

[00:36:55] Speaker 07:
And that's the requirement in the language of the MAG that is the problem.

[00:36:59] Speaker 07:
I actually wish that the notice had been effective.

[00:37:04] Speaker 07:
I wish the notice had given repair stations the ability to actually certify the parts as new instead of as inspected in block 11 of the status block of the 8130.

[00:37:16] Speaker 07:
Because at least on a temporary basis, it would have made things easier.

[00:37:19] Speaker 02:
Last question.

[00:37:21] Speaker 02:
What kind of order could we issue against the FAA that would redress your injury?

[00:37:27] Speaker 07:
The order could be as narrowly tailored as an injunction against the FAA enforcing the documentation elements under the appendix.

[00:37:42] Speaker 02:
What would be the basis of that order?

[00:37:44] Speaker 02:
Would it be that the FAA notice doesn't comply with European standards?

[00:37:49] Speaker 02:
We don't have any authority to enforce European standards.

[00:37:52] Speaker 07:
I would say that the first

[00:37:55] Speaker 07:
basis for that order that I would point to would be that the FAA in establishing the documentation requirement affected commerce and infringed the commerce clause by taking an action affecting commerce without appropriate congressional delegation of authority.

[00:38:10] Speaker 01:
It would violate the Constitution when it said should.

[00:38:12] Speaker 07:
Wait a minute.

[00:38:14] Speaker 02:
This is a... Can't you just reframe that as arbitrary?

[00:38:19] Speaker 07:
I would be happy to reframe it as arbitrary.

[00:38:22] Speaker 02:
So what's the argument?

[00:38:24] Speaker 02:
What would we order the FAA to do that would solve your problem?

[00:38:27] Speaker 02:
It looks to me like what you want is – you want to be sure these parts are certified for installation in European airplanes.

[00:38:34] Speaker 02:
Whether they're certifiable for European airplanes is a question for the European Union, not the FAA.

[00:38:40] Speaker 02:
The FAA makes recommendations to the EU.

[00:38:43] Speaker 07:
And in fact, the European Union and the United States have entered into an agreement, the Maintenance Annex, which establishes the parameters under which these parts will be acceptable.

[00:38:55] Speaker 07:
The Maintenance Annex Guidance added an element that was not in the Maintenance Annex.

[00:39:03] Speaker 07:
So they're actually violating the Maintenance Annex, because the Maintenance Annex has a mechanism for.

[00:39:09] Speaker 04:
But I think the United States said this was an agreement with the European

[00:39:15] Speaker 02:
Why don't we go ahead and get the, may I suggest that we get the FA?

[00:39:21] Speaker 02:
You can come back up later if we have more questions, but we're not, you have three very perplexed judges here.

[00:39:29] Speaker 02:
So let's see if the FA can help us and then we'll come back to you, okay?

[00:39:32] Speaker 04:
Let me say this, once you've said an oral argument for which I have no clue you're

[00:39:41] Speaker 07:
And I apologize for that.

[00:39:43] Speaker 07:
I feel like I've gone outside the record to answer questions.

[00:39:47] Speaker 07:
The record was very limited.

[00:39:49] Speaker 02:
Okay.

[00:39:50] Speaker 02:
Let's hear from Mr. Koppel.

[00:39:52] Speaker 02:
Go ahead.

[00:40:08] Speaker 08:
May I address the court?

[00:40:10] Speaker 08:
I'm John Cappell from the appellate staff civil division.

[00:40:12] Speaker 02:
Could you begin by doing your best to explain to us how you see this issue?

[00:40:19] Speaker 08:
Yes, Your Honor.

[00:40:23] Speaker 08:
What the court was driving at in its questions is absolutely right.

[00:40:27] Speaker 02:
What the petitioner... What the questions were, we weren't getting any facts.

[00:40:32] Speaker 02:
Tell us what is actually going on here.

[00:40:36] Speaker 08:
What is actually going on here is the petitioner is seeking an advisory opinion from this court with respect to a matter of European law.

[00:40:46] Speaker 02:
That's your argument about standing.

[00:40:48] Speaker 02:
I'm asking you to explain about these 8130s, when they're needed, when they're not needed.

[00:40:54] Speaker 02:
Would you just explain that to us from your perspective?

[00:40:57] Speaker 08:
Right.

[00:40:59] Speaker 08:
What the petitioner is seeking with respect to the 8130 is the petitioner wants to be able to sell as new components, components without provenance, components of uncertain provenance, components without the form 8130 tag.

[00:41:20] Speaker 02:
They want to be able to certify them themselves.

[00:41:22] Speaker 08:
They want to be able to say that those are new parts.

[00:41:26] Speaker 08:
They want to be able to market them without any documentation, without a Form 8133 documentation requirement.

[00:41:34] Speaker 01:
But to be clear, they don't want to take on the work of putting on the Form 8133 verification, right?

[00:41:39] Speaker 01:
They want the repair shops to do it.

[00:41:41] Speaker 08:
Right.

[00:41:42] Speaker 08:
Well, it's the repair shop's responsibility under the regulations to ensure that any component when it's installed has the form 8133 tag, either as a new release, the so-called left-hand release on the form, or as a maintenance release, which is the right hand.

[00:42:05] Speaker 08:
the right-hand release.

[00:42:07] Speaker 01:
And the reason that the... And to be clear on the right-hand, is that something that was unserviceable, is made serviceable, and then tagged?

[00:42:12] Speaker 08:
That is, yes, that would be one such situation.

[00:42:18] Speaker 08:
But the petitioner and the petitioner's members basically do not want to have to comply with the Form 8133 requirement at all.

[00:42:29] Speaker 08:
They don't want to have to, or they don't want the repair shops

[00:42:33] Speaker 08:
to have to comply with it at all because their theory is that this reduces the value of their parts because then the repair shops will pay less for the parts because they have to inspect them and they will charge for the inspection process that way.

[00:42:51] Speaker 08:
So that is why we do agree with the petitioner that the dispute isn't moot because they are saying they want an order

[00:43:02] Speaker 08:
essentially require as a matter of European law that there is no requirement for repair shops to require to have the 8130-3 form when they install a part, either as a new part or as a part undergoing maintenance.

[00:43:26] Speaker 02:
So you agree, your point is it's not moved because

[00:43:31] Speaker 02:
this August notice is only the FAA's position, correct?

[00:43:36] Speaker 08:
Well, it's not only – no, actually it is consistent with the European Union's view, but it's – Well, how do we know that?

[00:43:44] Speaker 08:
Well, you – I don't think you can really – you can say that you know that through the record.

[00:43:51] Speaker 02:
It doesn't say anything – it doesn't say in it that the European – that ESA agrees to it, right?

[00:43:57] Speaker 08:
No, I don't believe it.

[00:43:59] Speaker 08:
Well, it doesn't.

[00:44:00] Speaker 02:
No, I don't believe it.

[00:44:01] Speaker 02:
And previous notices do that are in the record, right?

[00:44:07] Speaker 02:
Previous notices that are in the record actually say in several places that ESA agrees to the notice.

[00:44:22] Speaker 02:
This one doesn't.

[00:44:24] Speaker 08:
Well, I don't believe that there is any disagreement with respect to ISSA or YASSA, but I agree that the notice does not explicitly say that.

[00:44:41] Speaker 08:
This new notice is entirely consistent with the MAG change itself, because it requires the Form 8133.

[00:44:52] Speaker 08:
And this is why it's unacceptable to the petitioner.

[00:44:57] Speaker 08:
See, what it does not do is it does not grandfather the part without any documentation requirement, which is what was done

[00:45:07] Speaker 08:
prior to, for parts that were installed prior to October 1st, 2016.

[00:45:12] Speaker 08:
It does not do that.

[00:45:14] Speaker 08:
It simply, going forward, it requires the repair stations to, or it enables the repair stations to use the Form 8133 prospectively.

[00:45:31] Speaker 08:
So we agree with the petitioner that it does not solve their problem, but we think that their problem cannot be solved because it's a matter of European Union law.

[00:45:48] Speaker 04:
But then it never went on to describe what that safety valve was and the scope of that function, why its existence is not a problem for you.

[00:46:02] Speaker 04:
It seemed momentarily to be an agreement between you and the petitioner, but then it seemed to disappear because you didn't develop it.

[00:46:13] Speaker 04:
I'm talking about passage 2, page 20 of your brief.

[00:46:18] Speaker 04:
Safety belt may not be the exact word.

[00:46:26] Speaker 08:
Well, we do recognize that there are some very limited exceptions to the Form 8130-3 requirement in the EASA regulations.

[00:46:42] Speaker 08:
But those are, for instance, with respect to certain components that are undergoing maintenance, which I believe is 142,

[00:46:54] Speaker 08:
or 145A-50D, and also with respect to certain other components that are fabricated by the maintenance organization in the course of doing its work.

[00:47:13] Speaker 01:
Well, can you explain why, respond to their argument about 145A-42,

[00:47:21] Speaker 01:
They say that's the safety valve.

[00:47:23] Speaker 01:
Why else would you have these unserviceable parts let into the bins at all?

[00:47:27] Speaker 08:
Your Honor, we disagree with that characterization.

[00:47:31] Speaker 08:
First of all, 14542A begins with establishing the general principle

[00:47:41] Speaker 08:
that, you know, that components should be released on the ASSA Form 1 or equivalent.

[00:47:43] Speaker 08:
And that is sort of... Wait, where is 145.8.42?

[00:47:45] Speaker 08:
145.8.42.

[00:47:45] Speaker 08:
That's where I'm at.

[00:47:46] Speaker 08:
145.8.42.

[00:47:46] Speaker 08:
That's where I'm at.

[00:47:46] Speaker 08:
145.8.42.

[00:47:47] Speaker 08:
That's where I'm at.

[00:47:47] Speaker 08:
145.8.42.

[00:47:48] Speaker 08:
That's where I'm at.

[00:47:48] Speaker 01:
145.8.42.

[00:47:49] Speaker 01:
That's where I'm at.

[00:47:49] Speaker 01:
145.8.42.

[00:47:50] Speaker 01:
That's where I'm at.

[00:47:50] Speaker 01:
145.8.42.

[00:47:50] Speaker 01:
That's where I'm at.

[00:47:51] Speaker 01:
145.8.42.

[00:47:51] Speaker 01:
That's where I'm at.

[00:47:52] Speaker 01:
145.8.42.

[00:47:52] Speaker 08:
That's where I'm at.

[00:47:52] Speaker 08:
145.8.42.

[00:47:53] Speaker 08:
That's where I'm at.

[00:47:53] Speaker 08:
145.8.42.

[00:47:54] Speaker 01:
That's where I'm at.

[00:47:54] Speaker 08:
145.8.42.

[00:47:54] Speaker 08:
That's where I'm at.

[00:47:55] Speaker 08:
145.8.42.

[00:47:55] Speaker 08:
That's where I'm at.

[00:47:56] Speaker ?:
145.8.42

[00:47:56] Speaker 08:
And that is consistent with the maintenance annex guidance at MA 501A, which is what controls here.

[00:48:07] Speaker 08:
That's in the components section.

[00:48:08] Speaker 08:
It says no component may be fitted unless it is in a satisfactory condition.

[00:48:13] Speaker 08:
Condition has been appropriately released to service on Inyasi form one or equivalent and is marked in accordance with

[00:48:21] Speaker 08:
with Annex 1, unless otherwise specified.

[00:48:25] Speaker 01:
Including in Part 145, so we keep going in a circle here.

[00:48:30] Speaker 08:
That's right, but it actually ends because Annex 2, Part 145 does not do what the petitioner says it does.

[00:48:38] Speaker 08:
That's what I would like you to explain to me.

[00:48:42] Speaker 08:
It reiterates that there's the basic requirement of YASA Form 1 or equivalent, and then there are limited exceptions to it.

[00:49:00] Speaker 08:
It's entirely consistent because ultimately, with those limited exceptions for things that are undergoing maintenance or are fabricated by the maintenance organization, there is an absolute requirement across the board that there be either a YASA Form 1 or equivalent

[00:49:22] Speaker 08:
with a component whenever it is installed on an aircraft.

[00:49:28] Speaker 01:
Is that what B does or is B's use of the term eligible there something different?

[00:49:33] Speaker 08:
No, I do not think that there's any daylight there, any difference.

[00:49:40] Speaker 08:
And MA504, which says control of unserviceable parts, which deals with unserviceable parts, highlights that at MA504A3, which says a component shall be considered unserviceable in any one of the following circumstances.

[00:49:55] Speaker 08:
Three, absence of the necessary information to determine the airworthiness status or eligibility for installation.

[00:50:02] Speaker 01:
And why do they say you can, what is the point of saying you can accept unserviceable components if you can't use them?

[00:50:07] Speaker 08:
But you can use, you have to, through inspection you can determine that they are serviceable, but then you still have to put on the form 8130-3 as part of the, as a maintenance release.

[00:50:22] Speaker 08:
So that is the way the European system works.

[00:50:28] Speaker 08:
And again, to highlight the standing problem, this is a matter of European law, and the petitioner is asking

[00:50:39] Speaker 08:
the court to issue an order that essentially really is an advisory opinion, because it's not binding on the European Union.

[00:50:51] Speaker 08:
The EASA is not a party here.

[00:50:54] Speaker 08:
And it would simply be an empty declaration that does not get the petitioner's members what they want.

[00:51:04] Speaker 02:
And that's why it's not moved, right?

[00:51:08] Speaker 02:
That's the reason why.

[00:51:09] Speaker 02:
Is that moot?

[00:51:10] Speaker 02:
Yes.

[00:51:10] Speaker 02:
Yes, Your Honor.

[00:51:11] Speaker 08:
That is why it is not.

[00:51:13] Speaker 02:
FAA has no authority to moot the case, correct?

[00:51:16] Speaker 08:
That's correct, Your Honor.

[00:51:17] Speaker 08:
This is a European requirement.

[00:51:18] Speaker 08:
Which is why there's no standing.

[00:51:20] Speaker 08:
That is correct, Your Honor.

[00:51:23] Speaker 01:
And the guidance that they want enjoined is jointly issued by you and ESA.

[00:51:30] Speaker 08:
That is correct.

[00:51:31] Speaker 08:
That is correct.

[00:51:32] Speaker 01:
So it's not for us to issue an injunction

[00:51:34] Speaker 01:
that would say the EU got EU law wrong?

[00:51:39] Speaker 08:
Yes.

[00:51:40] Speaker 01:
Which is what we would have to do.

[00:51:41] Speaker 08:
That is absolutely right, Your Honor.

[00:51:43] Speaker 04:
What does it mean at, I think it's Addendum 16, where it seems to, that's where it is, it seems to speak

[00:52:09] Speaker 04:
7 of NAG.

[00:52:13] Speaker 04:
Does that mean that the FAA, which issued this, issued 8900-280, is confident that the

[00:52:30] Speaker 08:
Well, yes, Your Honor, it does.

[00:52:31] Speaker 08:
Even though, as I believe Judge Tatel mentioned, it doesn't say that this was cleared with EASA.

[00:52:42] Speaker 08:
As a practical matter, I believe that that's exactly right, that it has been, and the FAA is confident that this

[00:52:52] Speaker 08:
that uh yassa will agree yassa agrees with this this reflects um the the uh this is consistent with european new law

[00:53:06] Speaker 04:
but the fact that it doesn't go as far in retreating from change six as the petitioner wants.

[00:53:14] Speaker 08:
That's correct, Your Honor.

[00:53:15] Speaker 08:
And indeed, we do not – we wouldn't say that it's really retreating from change six at all, but it certainly doesn't give the petitioner what it wants, and that's why we do agree with the petitioner that it's not moved.

[00:53:28] Speaker 08:
So if there are no further questions.

[00:53:30] Speaker 01:
I'm sorry, can I just clarify one more thing?

[00:53:31] Speaker 01:
Because you talked about things having to be tagged new, and I thought from the briefing they had to be tagged serviceable.

[00:53:36] Speaker 01:
Is that the same thing?

[00:53:38] Speaker 08:
No, they have to be tagged either, well it's either, well they're new components and they're used components that are described in change six.

[00:53:49] Speaker 01:
I thought this whole case was only about new and then within the new it has to be tagged serviceable.

[00:53:52] Speaker 08:
It really is, it really is, the petitioner's focus is on the new parts requirement, but they want, what they want is for the, for parts of,

[00:54:02] Speaker 08:
as I said, of uncertain provenance to be treated as new without any form 8130-3 requirement.

[00:54:13] Speaker 08:
And that is simply not consistent with EU law.

[00:54:18] Speaker 02:
OK, thank you.

[00:54:19] Speaker 08:
Thank you.

[00:54:20] Speaker 02:
Mr. Dixie, we took you way over your time, but you can have two minutes if you would like it.

[00:54:29] Speaker 04:
what it is that you believe the EU permits but is nonetheless forbidden by the FAA-EU document that you are challenging.

[00:54:45] Speaker 04:
Well, if the EU permits it, why did the EU sign off on this document, this change, this guidance?

[00:54:54] Speaker 07:
The answer to that forces me to go way outside of the record, Your Honor, and I am happy to tell these stories.

[00:55:02] Speaker 04:
It seems essential to your showing standing.

[00:55:05] Speaker 04:
If it isn't somewhere evident in the documents you would put before us, then it would seem to me you don't have standing.

[00:55:20] Speaker 07:
The belief seems to have been that because European manufacturers often issue IASA Form 1, but United States manufacturers typically do not issue the 8130-3 tag,

[00:55:39] Speaker 07:
There's a tremendous inventory of parts that don't have these tags, which the government called parts of uncertain provenance.

[00:55:47] Speaker 07:
That is absolutely not true.

[00:55:48] Speaker 07:
These are parts manufactured by FAA production approval holders that have other indicia of airworthiness.

[00:55:56] Speaker 07:
So there's other reasons to believe that these are good parts.

[00:56:01] Speaker 07:
It appears that part of what was behind this was a belief that

[00:56:06] Speaker 07:
If we can inhibit these parts from going into repair stations, then at the end of a period of time, these parts will have caused what are known as AOGs, aircraft on ground.

[00:56:20] Speaker 07:
They will have caused reliability problems in U.S.

[00:56:25] Speaker 07:
manufactured aircraft.

[00:56:28] Speaker 07:
The reliability problems aren't real reliability problems, they're paperwork problems.

[00:56:33] Speaker 07:
Those reliability problems don't appear to have arisen or would not appear to have arisen for European aircraft because Europeans typically, for many of their parts, issue the IASA Form 1.

[00:56:48] Speaker 04:
And I can tell you that even though that seems to have been the theory... You were discussing the practical problem.

[00:56:56] Speaker 04:
Let's assume you're right, but you have not begun to answer my question, which was to identify something, and something in the record that will tell us about it, is permitted by the EU with respect to the use of parts, obviously, that is forbidden under this document.

[00:57:22] Speaker 07:
And the answer to that is that

[00:57:25] Speaker 07:
If you have a European repair station, they're going to bring in parts, and they're going to ask for these 8130-3s on parts.

[00:57:35] Speaker 07:
If the parts don't have them, then they're going to have to be brought in as unserviceable.

[00:57:41] Speaker 04:
You're describing how it operates on the ground.

[00:57:45] Speaker 04:
You're not describing a distinction between

[00:57:54] Speaker 04:
requirements.

[00:57:56] Speaker 07:
And the EU requirement very simply is that

[00:58:03] Speaker 07:
Within the European Union, they make use of the unsalvageable safety valve to bring parts in without documentation.

[00:58:12] Speaker 07:
We haven't had a documentation requirement under US law, and that's one of the reasons why the maintenance annex didn't impose.

[00:58:19] Speaker 04:
If I understand that correctly, the EU has signed off on this set of requirements for US repair stations.

[00:58:31] Speaker 07:
And actually, if I am understanding the FAA correctly, the EU has not yet signed off, but they believe that the EU may sign off on this.

[00:58:41] Speaker 01:
Wait, the guidance was jointly issued?

[00:58:45] Speaker 01:
Yes.

[00:58:45] Speaker 01:
OK, that's what we're talking about.

[00:58:46] Speaker 01:
The guidance says you need to have the form 8130 on the parts, and that was jointly issued.

[00:58:54] Speaker 01:
I think that's what Judge Williams is talking about.

[00:58:58] Speaker 07:
I'm sorry, yes, the guidance.

[00:58:59] Speaker 04:
You were in the position of saying that the EU permits that which a document that it has signed off on forbids.

[00:59:13] Speaker 04:
That certainly goes beyond our ordinary competence.

[00:59:20] Speaker 07:
One of the reasons that we are here today is because the Europeans basically allowed the FAA or negotiated with the FAA to enter into this maintenance annex guidance that contravenes the actual annex, is not actually imposed in Europe,

[00:59:40] Speaker 07:
and undermines U.S.

[00:59:43] Speaker 07:
competitiveness by taking parts that are known to be safe and saying they can't be used.

[00:59:56] Speaker 07:
I would not disagree with that characterization.

[01:00:00] Speaker 02:
Anything else?

[01:00:03] Speaker 02:
No.

[01:00:03] Speaker 02:
Okay.

[01:00:04] Speaker 02:
Case is submitted.

[01:00:05] Speaker 02:
Thank you.

[01:00:07] Speaker 07:
Thank you, Your Honor.