FAA Flies Too Far on Air Carrier Contract Maintenance NPRM

In the United States, we have a federal system based on the principle of checks and balances.  Each branch (legislative, executive and judicial) has separation of powers, ensuring none exceeds its constitutionally granted authority. Consequently, the legislative branch (Congress) passes laws which are enforced by the executive branch (the president and the expansive bureaucracy) and interpreted by the judicial branch (the courts, including the Supreme Court).

Congress passes laws, federal agencies enforce the statutes through regulation, and if you have a problem, you go to the courts. Simple, right? It would be if Congress would enact clear and concise laws, if the administration would enforce those laws as written by the legislative branch, and if the courts interpreted based on the plain meaning of the statute.

Unfortunately, Congress hardly passes clearly-written bills, regulators seldom issue narrow and concise regulations, and the courts rarely rely solely on the plain meaning of the words in the law. Consequently, the federal government operates more like a factory producing nuts that don’t fit on the bolts, rather than a smoothly-run assembly line.

Last fall, the FAA issued a notice of proposed rulemaking (NPRM) regarding air carrier contract maintenance requirements, and those nuts did not fit the bolts. The proposed new regulation is based on Sec. 319 (titled “maintenance providers”) of the FAA Modernization & Reform Act (commonly referred to as the FAA reauthorization), which was finally enacted in 2012, more than six years after the expiration of the old law (VISION-100).

The Aeronautical Repair Station Association (ARSA) was directly involved with suggesting improvements to the “maintenance providers” section while the House and Senate considered the legislation. Ultimately, Congress adopted many of ARSA’s suggested improvements in the final law. However, in the process of turning the congressional mandate into functional rules, the FAA went far beyond the scope of the legislation.

As passed by Congress, section 319 deals with who may provide “covered work” on aircraft used to provide air transportation under Title 14 Code of Federal Regulations 14 CFR  Part 121. The statute is clear that covered work may be performed only if the person is employed by a Part 121 air carrier, a Part 145 repair station (or persons authorized under sec. 43.17), or subject to subsection C of the provision, a person providing contract maintenance, workers, services and maintenance functions to an air carrier or repair station.

Although “Subsection C” clearly applied only to certain persons providing services to an air carrier or repair station, the FAA chose to extend its requirements universally. That is, the additional limitations attached regardless of Part 121 or Part 145 certifications despite plain language in the law authorizing such certificate holders to perform covered work. Additionally, the agency decided that despite Congress limiting the provision to apply to only those providing covered work on Part 121 aircraft, it would extend the rule to cover Part 135 air carriers as well.

Of course, if there were a compelling safety justification for such an expansion, it would arguably be within the FAA’s powers to ignore the statute and congressional intent. However, there is no safety rationalization and the NPRM exemplifies a federal agency disregarding lawmakers to impose more regulation without benefit to the flying public.

Essentially, lawmakers entered one thing in the supercomputer known as the FAA and the agency printed out something else — a proposed regulation that went significantly beyond congressional intent. In other words, Congress did its legislating but the executive branch decided to do some of its own lawmaking. We will see how far the FAA goes when the final regulations come out. If the final rule looks similar to the NPRM, it might be time for the judicial branch to do some statutory interpretation of its own.

Daniel B. Fisher is ARSA’s vice president of legislative affairs and senior legislative associate at the law firm of Obadal, Filler, MacLeod and Klein. Fisher attended St. Mary’s College of Maryland, where he graduated magna cum laude, and received a law degree from George Mason University School of Law. Prior to joining ARSA, Fisher served four years on the U.S. Senate Judiciary Committee staff of the late Sen. Arlen Specter (Pa.).