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ARSA Works: FAA Policy Jeopardizes AD Compliance

On April 29, ARSA requested the FAA revise a legal interpretation regarding second and third-tier documents that are purportedly incorporated by reference (IBR’d) in an airworthiness directive (AD). ARSA’s letter points out that the legal interpretation – and existing guidance – violate the Administrative Procedure Act (APA) and force maintenance providers to divine what is required to comply with the AD.

Here is an example:

An AD specifically references a service bulletin (SB) and mandates that maintenance providers accomplish specific instructions therein. The SB then references a manual and that document references a standard practice manual. The only document actually referenced in the AD is the SB.

According to the agency, unless maintenance providers have an alternative method of compliance (AMOC), they must follow the requirements contained in a laundry list of subsidiary references (e.g., a manual, a standard practice manual) in order to comply with the AD. The agency overlooks the fact that manufacturer maintenance information is not binding unless it is made so through a rulemaking (refer to this 2009 interpretation for an example). Part and parcel of any rulemaking is that the agency actually tells the public what is required to comply with the mandate.

ARSA challenged the FAA’s legal interpretation that multi-tiered references are binding because that conclusion expressly contravenes APA protections. To add insult to injury, the agency justifies noncompliance with the APA by conflating separate and distinct legal concepts. Thankfully, federal courts have already rejected similar arguments from other federal agencies.

Aviation safety demands unsafe conditions be accurately identified and resolved in an unambiguous manner. Simply pointing to a list of voluminous documents and placing the burden on maintenance providers to determine what is mandatory will not suffice. For that reason, ARSA will continue to press the agency to clearly articulate what is necessary to comply with an AD.

Previously from ARSA...

New Year will Bring New IBR Rule

November 14, 2014

Starting Jan. 6, 2015, agencies will have to expend slightly more effort to incorporate materials by reference (IBR) into rulemaking documents.

On that date, a new rule issued by the Office of the Federal Register (OFR) becomes effective. Specifically, that rule requires agencies to describe in the preambles of proposed and final rules the steps taken to make IBR materials reasonably available to interested parties, or alternatively, to summarize the content of those IBR materials.

Review of the IBR process was prompted by a 2012 petition for rulemaking submitted by a coalition of law professors along with the National Archives and Record Administration (NARA). That petition requested that the OFR require all IBR materials be available online for free, and that during the IBR approval process the Director of the Federal Register review all documents agencies list in their guidance, as well as those listed in their regulations.

Despite ARSA’s comments strongly supporting that petition, the OFR declined both requests.

FAA AMOC Order Interpretation

January 27, 2014

On Jan. 27, the FAA responded to ARSA’s Aug. 28, 2013 request for legal interpretation regarding second and third-tier documents not approved for incorporation by reference into an Airworthiness Directive.

To review the response, click here.

ARSA Requests Interpretation on AMOC Order

August 28, 2013

On Aug. 28, ARSA sent the Federal Aviation Administration (FAA) a request for a legal interpretation confirming question “f” in the appendix of Order 8110.103A is inaccurate and that it and the answer will either be corrected or removed.

The question and answer listed in the Order are as follows:

Question: The AD requires that I accomplish specific instructions in a SB [Service Bulletin]. Those instructions require actions from a manual, and the manual requires actions from a standard practice manual. My operating procedure differs from the standard practice manual. Do I need an AMOC [Alternative Methods of Compliance] to keep using my operating procedure?

Answer: Yes. You must accomplish the specific instructions in the SB specified in the AD (Airworthiness Directive), including any second- or third-tier documents that are required to complete the action(s).

ADs are part of the Code of Federal Regulations and are therefore subject to the Administrative Procedures Act, which requires an agency obtain approval for each document it wishes to incorporate by reference (IBR) in a rule. In its request, ARSA argued the answer to question “f” does not make clear what exactly is “required to complete the action(s),” and that the language in the Order does not comply with the requirements governing IBRs.

Stay tuned to ARSA for the FAA’s interpretation.

To see all the ways ARSA is working as the voice of the aviation maintenance industry, visit the ARSA Works page.



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