The New Part 145 – Adventures in Bad Rulemaking

It can take years to learn and master the nuances of the Code of Federal Regulations (CFR) and apply its dictates to day-to-day maintenance operations effectively. Understanding the regulations that govern your work is a key element of success, but it’s not enough.

Directors of maintenance must also know, understand and engage in the process through which the government changes the CFR in order to shape the standards set for industry as well as ensure that the agency plays fair. The Aeronautical Repair Station Association (ARSA) leads this work for its members by monitoring the Federal Register carefully, highlighting changes or potential changes that will impact repair stations, participating directly by submitting comments and then providing compliance-related resources for maintenance providers.

Most importantly, ARSA sounds the alarm when something goes wrong. Our sirens are wailing right now: On Aug. 12, 2014, the FAA issued a final rule amending 14 CFR part 145, which is effective on Nov. 10. As the association has reported, the FAA essentially gutted the notice of proposed rulemaking (NPRM) to which ARSA submitted comments in 2012.

The adopted changes that were contemplated by that NPRM focus on bad actors, but include a troubling new provision requiring the FAA to grant permission to a repair station “surrendering” its certificate. Maintaining a certificate is expensive, yet under the new rule the agency has discretion to deny surrender even where a business cannot sustain the financial burden. It is unacceptable for the agency to punish businesses by refusing to accept a voluntary surrender, especially when it does not impede other certificate holders in such a manner.

ARSA is further distressed — and you should be too — by changes in the final rule that the NPRM did not contemplated. Notably, the FAA removed the word “serious” from § 145.221, which requires repair stations to report a failure, malfunction or defect of an article to the agency within 96 hours. Complying with this section was already difficult. By removing the word “serious,” repair stations are effectively required to report everything that comes through the door — if an article did not have a failure, malfunction or defect, it would not need work. Requiring a repair station to report any such issue is both unrealistic and a complete waste of resources.

This is an upsetting example of why the industry must watch the agency carefully as it updates its own rules. The FAA states in the preamble to the most recent final rule that the word “serious” was removed through notice-and-comment rulemaking in 2001, and that it was “inadvertently inserted” by a separate final rule. This is blatantly untrue. The effect of removing the word “serious” was contemplated by notice-and-comment rulemaking in 2003 (“Service Difficulty Reporting”, 68 FR 75380). The FAA deliberately and correctly inserted the word. There was nothing “inadvertent” about it.

Contrary to the FAA’s assertion, this change — along with others not contemplated by the NPRM — is significant and merits the opportunity for public comment. The aviation maintenance community has to stand up and ensure that the agency hears its collective voice. The first step is simple: become intimately familiar with the new Part 145. ARSA has done the comparative work already; visit arsa.org/repair-station-rule/ to review a red-lined document highlighting every change.

Remember that this is a long game that never ends. ARSA works every day to make sure that the FAA follows its own rules as it creates the ones that govern industry. Join us and together, someday, we will find the perfect balance between private responsibility and public oversight. Stay tuned at arsa.org as the association strives to make things right.   

Sarah MacLeod is executive director of the Aeronautical Repair Station Association (ARSA), an organization she helped found 30 years ago. She is a managing member at the law firm of Obadal, Filler, MacLeod & Klein, P.L.C. and is engaged in the legal representation of foreign and domestic air carriers, aircraft maintenance and alteration facilities, distributors, pilots, and other individuals and companies in federal court and before federal administrative bodies. She also serves as assistant chair for Air Carrier and General Aviation Maintenance of the FAA’s Aviation Rulemaking Advisory Committee, a post she has held since 1996. A globally-recognized expert in aviation regulatory compliance, Ms. MacLeod is a sought-after speaker and has appeared at numerous aviation and MRO events. She is admitted to the bar in Virginia.