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NTSB Denial is Beside the Point

On Oct. 13, the NTSB denied ARSA’s attempt to intervene in two cases concerning repairman certificate denials. Administrative Law Judge Stephen R. Woody delivered the denial order to Obadal, Filler, MacLeod & Klein, P.L.C., the association’s management firm providing pro-bono assistance in the legal effort.

The matters before the board involve a repair station making recommendations supporting repairmen certificates for supervisors with approval for return to service duties. The FAA denied the recommendations. On Aug. 27, OFM&K filed a motion for leave to intervene on ARSA’s behalf.

“The denials were not based upon whether the individuals were qualified to perform the work appropriate to the job of supervisor set forth in the rules governing repair stations,” said ARSA Executive Director Sarah MacLeod, who is also managing member of OFM&K. “Nor were the denials based upon the individuals lacking the practical experience required. The FAA’s answer to the repairmen appellants was that an outdated advisory circular and equally stale internal guidance did not ‘allow’ such a rating. Ironically, the internal guidance upon which the FAA relies plainly states: Repairmen do not have a rating other than ‘Repairman.’”

The board’s denial was unconcerned with the actual matter at hand in the cases. Woody instead followed the FAA’s response to ARSA’s petition by rejecting the association’s legitimate interest in the case:

“ARSA has not claimed that it has a property or financial interest in the outcome of these proceedings, and it does not appear to have any ‘other legitimate interest’ in them,” Woody said, citing the association’s stated purposes in its articles of incorporation. “The sole issue presented in these cases is whether petitioners Turner and Messner-Henning are qualified as individuals to hold repairman certificates. It is difficult to conceive how the resolution of that issue substantially affects [the association’s] welfare.”

Contrary to Woody’s assertion, intervening in a case regarding regulatory interpretation is fully consistent with ARSA’s purpose as stated in the articles “to develop positions and objections with regard to legislative and regulatory matters, and to initiate action which will achieve those objectives, consistent with the policies of the Corporation and with the laws governing the conduct of such activities.”

Considering the NTSB’s ultimate decision has the potential to affect every ARSA member company by imposing unnecessary compliance costs, administrative burdens and limits on workforce flexibility. That would seem to be an “other legitimate interest,” which the denial failed to address.

The association’s leadership team and its board recognized the potential outcome. Its executive director warned of the outcome in the September edition of the hotline. If the association gets the chance to file an amicus brief – which is only allowed after Woody’s decision on the merits is issued – it will do so.

To read the original motion to intervene, click here.

To read the FAA’s response, click here.

To read the NTSB’s denial, click here.

For more information on ARSA’s work related to repairman certificates, review the content below.

Previous work related to repairman certificates...

9/14/20 - FAA Running Scared from Repairman Case Intervention

September 14, 2020

On Sept. 11, the FAA delivered to the NTSB the aviation agency’s “response in opposition” to ARSA’s effort – through pro bono assistance of the law firm of Obadal, Filler, MacLeod & Klein, P.L.C. – to intervene in two cases concerning repairman certificate denials.

In legal proceedings there are motions, oppositions to motions, cross-motions and appeals; the repairmen appeal matters ARSA entered are no different. On Aug. 27, the association filed a motion for leave to intervene, which means ARSA asked to become a party in the appeal of two repairmen whose certificates were denied by the FAA. Since repair stations are directly impacted by the refusal of the agency to issue the airmen certificates, and the individuals were (at that time) not being represented by counsel, the association felt the request was reasonable.

The FAA refused to do the right thing in the first place: follow the regulations that allow repair stations to support repairmen applications for supervisors and positions that will be authorized to approve work for return to service. Therefore, it is no surprise that the agency’s motion in opposition basically accuses ARSA of wishing to grandstand (and slow the proceedings by filing unnecessary motions). The agency’s document also highhandedly states the pro se litigants could “always” hire their own counsel.

The FAA’s motion graciously stated that in lieu of making the association a party, ARSA could be allowed to submit an amicus curiae (friend of the court) brief. Thank you very much, but under the Board’s Rules of Practice, those briefs are allowed only after the NTSB administrative law judge’s (ALJ’s) initial decision (or appealable order) and require either the consent of all parties or leave from the NTSB General Counsel.

The association can understand the agency would not want to face experienced counsel in these cases. It is much easier to handle pro se litigants with a desire to have their day in court but with neither knowledge in legal proceedings nor the money or desire to hire their own counsel. In these cases, the FAA certainly does not want counsel that will provide a solid legal case based on the plain language of the regulations and relevant evidence, not outdated and contradictory guidance material. The agency’s lawyers would much rather keep their righteous head-in-the-air attitude than be faced with evidence that FAA has correctly issued repairmen certificates without any ratings since the “job” is dictated by the employer’s needs and the individual’s qualifications. (You know, evidence that the agency has issued the kind of certificate requested contrary to its answer, which claimed issuance would be contrary to the regulation and guidance.)

The agency may end up getting its way in these matters; friend of the court briefs, if allowed, are poor substitutes for becoming a party. If that happens and the individual repairmen do not obtain their own counsel, NTSB ALJ may determine that the agency is correct. It might happen merely because the individuals do not understand the timing and requirements of the legal proceedings. That could result in the agency winning by default or on a technicality without ever having to defend its misaligned guidance against the facts and the plain language of applicable regulations.

In the end, the denial of the airmen certificates to qualified individuals presented another avenue to pursue in ARSA’s quest to have guidance associated with repairmen reflect the regulation and reality. Like the last stanza of Roy Orbison’s haunting ballad, the agency is standing there, so sure of itself, its head in the air; while the airmen’s hearts may be broken by an ALJ’s choice—before it is over, justice will turn around and walk away with the industry, because ARSA does not quit when the law is on its side.

 

To read the complete motion to intervene, click here.

To read the FAA’s complete response, click here.

8/28/20 - Enough is Enough for Repairman Denials

August 28, 2020

On Aug. 27, ARSA took the unusual step of requesting the law firm of Obadal, Filler, MacLeod & Klein, P.L.C. (OFM&K) file a motion for leave to intervene in two cases before the National Transportation Safety Board. The association requested the law firm represent the interests of its part 121, 135 and 145 applicant and certificate-holding members who seek to obtain repairman certificates for qualified individuals.

The matters before the Board involve a repair station making recommendations supporting repairmen certificates for supervisors with approval for return to service duties. The FAA denied the recommendations.

“The denials were not based upon whether the individuals were qualified to perform the work appropriate to the job of supervisor set forth in the rules governing repair stations,” said ARSA Executive Director Sarah MacLeod, who is also managing member of OFM&K. “Nor were the denials based upon the individuals lacking the practical experience required. The FAA’s answer to the repairmen appellants was that an outdated advisory circular and equally stale internal guidance did not ‘allow’ such a rating. Ironically, the internal guidance upon which the FAA relies plainly states: Repairmen do not have a rating other than ‘Repairman.’”

The association has unsuccessfully sought changes to align the advisory circular and internal guidance with the regulations since the repair station rules changed in early 2000. When it became aware of the repairmen appealing their denials, it took the rare opportunity to seek judicial resolution of the long-standing mismatch.

“[Air agency and air carrier certificate holders] are required to ensure an individual holds the proper qualifications to be assigned certain jobs and/or duties,” ARSA’s motion said, explaining the connection between the specific cases and the broad aviation industry’s interest. The submission is the association’s most-recent action in a long-standing effort to correct an unsupported contention by the FAA that a repairman certificate is an unfit substitute for an individually held airframe and/or powerplant mechanic certificate. Correcting this governmental bias will protect rights of repair stations to manage personnel according to the plain language of the aviation safety rules.

To read the complete motion, click here.

8/26/20 - FAA Considering ARSA-submitted Repairman Task

August 26, 2020

On Aug. 25, ARSA received the FAA’s official initial response to the association’s draft repairman certificate tasking for the Aviation Rulemaking Advisory Committee (ARAC). The agency’s letter, delivered 494 days after the task was originally submitted for consideration, merely confirms the draft was reviewed and promises to “retain it for full consideration as plans unfold to structure and establish the task for ARAC.”

The 2018 FAA reauthorization law included a provision directing the administrator to task ARAC to recommend policy changes necessary to make repairman certificates portable from one employing certificate holder to another. ARSA proposed the ARAC repairman language in the FAA bill due to concerns that the current rules undermine workforce mobility, create inefficiency for certificate holders, employers and the FAA and fail to recognize the broad range of skills represented in the maintenance industry’s technical workforce. On April 19, 2019, the association followed through on the effort by delivering draft tasking language to Acting Administrator Dan Elwell.

To read all 145 words of the complete response, click here.

To learn more about ARSA’s work on repairman certificate issues, including the initial submission of the task in April 2019, review the content below.

4/24/19 - ARSA Submits Repairman Portability Task to FAA

April 24, 2019

The 2018 FAA reauthorization law included a provision directing the administrator to task the agency’s Aviation Rulemaking Advisory Committee (ARAC) to recommend policy changes necessary to make repairman certificates portable from one employing certificate holder to another.

Under current FAA regulations (14 CFR part 65, subpart E), individuals employed and recommended by an FAA-certificated repair station or air carrier, may apply for and obtain a repairman certificate. This certificate differs from a mechanic certificate issued under part 65, subpart D in that it qualifies the individual to work “only in connection with the duties for the certificate holder by whom the repairman was employed and recommended.” When the repairman leaves the employ of the repair station or air carrier, he or she loses the certificate and must reapply when beginning work for a new employer.

ARSA proposed the ARAC repairman language in the FAA bill due to concerns that the current rules undermine workforce mobility, create inefficiency for certificate holders, employers and the FAA and fail to recognize the broad range of skills represented in the maintenance industry’s technical workforce. On April 19, the association followed through on the effort by delivering draft tasking language to Acting Administrator Dan Elwell.

The association is now awaiting word from the FAA about how the agency will proceed. Once there is consensus on the task, it will be published in the Federal Register for comment and to allow interested individuals to participate in the repairman certificate working group.

For questions or more information, please contact ARSA Executive Vice President Christian Klein.

To review all of ARSA’s efforts during the 2018 FAA reauthorization process, visit arsa.org/faa-reauthorization-2018.

For updates on the effort to get funding for the workforce grant program authorized by the FAA bill, visit arsa.org/grant-program.

9/18/17 - ARSA Training: Part 65 Repairman Certificates

September 18, 2017

This session reviews the requirements of 14 CFR part 65 subpart E, which concerns aviation repairmen. It presents the language of part 65 in the context of parts 121, 135 and 145 as well as agency guidance regarding the management of repairman applications. Throughout, the session connects and compares the repairman’s requirements to those of the mechanic’s certificate issued under part 65.

Instructors: Sarah MacLeod & Brett Levanto

Click here to register and get access for 90 days.

This is the third session on part 65 the association has made available (see the other two below). Want all three? Click here to purchase together and save.

5/14/09 - ARSA Responds to FAA Inaction on Repairmen

May 14, 2009

To read ARSA’s letter click here.

8/7/08 - ARSA Clarifies Repairman Request

August 7, 2008

To read ARSA’s letter click here.

11/21/07 - ARSA Seeks Removal of Prohibition for Issuing Repairman Certificates

November 21, 2007

In a letter to the Federal Aviation Administration (FAA), ARSA requested removal of the prohibition on issuing repairman certificates for airframe and powerplant qualified individuals. Current internal FAA guidance prohibits the issuance of repairman certificates as a substitute for a mechanic certificate. After researching the issue, the Association requested that the FAA issue airmen certificates based upon the request and qualifications of the individual.

To read ARSA’s letter click here.

ARSA Training: Part 65 Repairman Certificates



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