SO YOU THINK IT DOESN’T MATTER
You spend hours poring over a change to Title 14 Code of Federal Regulations (14 CFR), then drafting, reviewing and finally submitting comments only to have the agency blow you off. Alternatively, you don’t pay any attention to proposed rule changes; someone clues you in later instead. It seems like either way you end up with the same outcome, so why bother putting the time, effort and resources into commenting?
The obvious pitfalls of the second choice are potential civil penalties or certificate actions. Knowing what is coming down the pipe of aviation safety regulations is essential to your livelihood. When the agency gets something wrong, submitting substantive comments is essential.
Let’s take airworthiness directives (ADs). Yes, they are rules and are often poorly written. Every certificate-holding mechanic, repairman, pilot, repair station and operator is responsible for some element of correcting the problems identified in these proposals. If the people responsible for compliance don’t understand how to achieve it, the safety of aircraft and the public is at risk.
Inherent in addressing an unsafe condition is a succinct technical description of the issue. Unsafe conditions are created from specific concerns with design, manufacturing or maintenance. Ensuring the safety issue is identified with specificity is essential to pinpointing the correct fix. Providing substantive comment on the agency’s technical deficiency in explaining the unsafe condition or in mandating a corrective action enables the agency to adjust the proposal. If the FAA blows off the comments, a court can take exception. Without the comments there is no hope for agency reaction or appropriate judicial review.
Even if the unsafe condition is technically comprehensible, the agency’s proposed fix can be unintelligible or too complicated. The FAA has a significant dependence upon the design and production certificate holders when it comes to identifying and addressing technical safety issues. Most AD proposals incorporate manufacturer service instructions by reference, mandating strict compliance with specific steps, procedures and standards. Even more troubling, the service instruction can include references to even more documents creating double and triple incorporations by reference — all supposedly mandatory. These multiple documents are far from perfect, making compliance problematic. If all the references are contained in the final rule, alternative means of compliance (AMOCs) will have to be sought for every deviation.
Substantive comments — those that point out legal, procedural and technical problems AND proposed solutions — have to be addressed by the agency. If the FAA wishes to ensure compliance, it will adjust the rule because of the comments. On the other hand, if the FAA incorrectly blows something off, it is subject to judicial review. Even if you never plan on suing the agency, others might and your expertise will count.
Don’t have time to review every rule and submit comments? Contact a trade association or other interested parties to see if others are upset and/or going to submit comments. Your expertise will count there, too.
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.