FAA reverses contested maintenance duty time legal interpretation

On Dec. 26, 2012, the Federal Aviation Administration (FAA) finally withdrew its faulty legal interpretation of the maintenance personnel duty time limitations prescribed in Title 14 Code of Federal Regulations (14 CFR) section 121.377. Although the correction took longer than expected, the end result was a major victory for the aviation industry, and a perfect illustration of the value in actively engaging the FAA when it veers from its own regulations.

Specifically, the agency reversed course on its May 18, 2010, legal interpretation meant to clarify the application of § 121.377 rest provisions. However, instead of providing clarification, the FAA erroneously concluded that the rule rigidly required one day off out of every seven days.

A December 2010 complaint from ARSA prompted the agency’s reevaluation. ARSA noted that the agency’s interpretation overlooked the plain language of the rule, which clearly states the period of required rest is “24 consecutive hours during any seven consecutive days, or the equivalent thereof within any one calendar month.” (Unfortunately, the FAA interpretation inexplicably conditioned operation of the underlined phrase to emergency situations).

In addition to the clear language of the regulation, ARSA pointed to a prior FAA legal interpretation affirming the equivalency provision in the rule. Namely, the FAA’s June 1987 statement that the duty-time requirements permit “maintenance personnel to work continuously in any one calendar month, provided they are given time off and away from work in that month equal to the actual hours they would have been relieved from duty, had they worked six days with the seventh day off.”

ARSA also noted that the FAA’s “new” legal interpretation in 2010 amounted to an impermissible regulatory change. That is, the interpretation altered the long-standing meaning and application of § 121.377 and therefore represented a change to the rule. As a result, the agency violated the notice and comment requirements of the Administrative Procedure Act (APA). In support of that position, ARSA cited the conclusion reached by the U.S. Court of Appeals for the D.C. Circuit that “‘[o]nce an agency gives its regulation an interpretation, it can only change that interpretation as it would formally modify the regulation itself: through the process of notice and comment rulemaking.”

In response to ARSA’s complaint, the FAA published a notice in the Federal Register on April 15, 2011, requesting comments on its “new” interpretation. On June 14, 2011, ARSA submitted comments reiterating its assertion that the interpretation deviated from the plain language of the regulation and must therefore be rescinded. Many other groups, including Airlines for America, the Transport Workers Union of America and the Professional Aviation Maintenance Association joined ARSA’s position in their comments to the regulatory docket.

Now, more than two years later, ARSA received the FAA’s response acknowledging its error and clarifying that, “The requirement for equivalency lies in the amount of rest given, not in the way the schedule itself operates or is developed.”

The regrettable delay between ARSA’s complaint and the agency’s withdrawal has already imposed serious consequences on the industry. Air carriers and their maintenance providers revised schedules at significant cost in order to accommodate a wrongheaded bureaucratic action. Nevertheless, the result in this matter carries several important lessons for the entire aviation industry:

• If the FAA wants to act, it will act.In this case, the agency decided on a course of action and immediately moved in that direction. The fact that its action went against its own regulations was ignored during the initial action; but importantly, the rule could not be ignored in reaching the final result.

• It’s important to engage the FAA.From the time the interpretation was written until the time the agency reversed course, ARSA was active in its outreach to the industry. The issuance of the interpretation was no reason to let the issue drop. The Association was confident in its position and was willing to back that position despite years of delay.

• It’s important to get others to engage. After discovering the flawed interpretation, ARSA encouraged other members of the aviation industry to get involved in the process. In the end, organizations representing all segments of the industry weighed in supporting ARSA’s position.

• Persistence is key. Though it took two years to reverse course, ARSA remained persistent in fighting for the withdrawal. This persistence ultimately paid off.

The FAA’s actions illustrate the fact that regulatory compliance works both ways—the government must be held accountable for its failure to follow the rules, just as it demands that industry adhere to the highest standards of safety. It is regrettable that it took so long to resolve, but that cannot and should not reduce the importance of the outcome.

Craig Fabian serves as vice president of regulatory affairs and assistant general counsel for the Aeronautical Repair Station Association and is an attorney with the law firm of Obadal, Filler, MacLeod, and Klein. Fabian worked for Obadal, Filler, MacLeod & Klein from 2006 – 2007 and rejoined the firm in 2009 after serving as director of technical operations for the Air Transport Association (ATA; now known as Airlines for America). He was previously an attorney in the aerospace practice of another Washington, D.C. law firm. Before practicing law, Mr. Fabian spent nearly 15 years in the aviation maintenance industry; first as an aircraft mechanic and avionics technician for Northwest Airlines, then as a maintenance control supervisor for US Airways. He holds an FAA mechanic’s certificate with airframe and powerplant ratings, and is licensed to practice law in Pennsylvania and the District of Columbia.

1FAA Legal Interpretation 1987-15 (June 14, 1987)

2Alaska Professional Hunters v. FAA, 177 F.3d 1030 (1999)