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NATA Comments on Air Carrier Maintenance Requirements

February 11, 2013


Docket Operators, M-30

U.S. Department of Transportation

1200 New Jersey Avenue, SE

Washington, D.C. 20590-0001

 

Delivered electronically via www.regulations.gov

 

RE:      Docket No. FAA-2011-1136; Notice Of Proposed Rulemaking, Air Carrier Maintenance Requirements

 

The National Air Transportation Association (NATA), the voice of aviation business, is the public policy group representing the interests of aviation businesses before Congress, federal agencies and state governments.  NATA’s 2,000 member companies own, operate, and service aircraft.  These companies provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft.  NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation, and the military.

 

The Federal Aviation Administration (FAA) published this Notice of Proposed Rulemaking (NPRM), Air Carrier Contract Maintenance Requirements, in November 2012 in response to a mandate contained in section 319 of the FAA Modernization and Reform Act of 2012 as well as numerous Department of Transportation (DOT) Inspector General (IG) reports.  This proposed rule will require airlines operating under 14 CFR Part 121 and on-demand charter operators utilizing aircraft with 10 or more passenger seats to:

  • Develop policies, procedures, methods and instructions for performing contract maintenance that are acceptable to the FAA and include them in their maintenance manuals
  • Create procedures for the oversight of compliance with those policies, procedures and methods by the contract maintenance providers
  • Maintain and submit, to the FAA, a list of the maintenance providers to which the operator contracts work. This list must include:
    • Name and address of the maintenance provider
    • Description of the maintenance that would be performed

NATA appreciates the opportunity to comment on this proposed rule. 

While it was the FAA Modernization Act of 2012 (“the Act”) that sparked this NPRM, the FAA has gone beyond the scope of what the statute requires.  Section 319 of the Act requires the FAA to issue regulations for Part 121 operators.  There is no mandate to require similar regulations for Part 135 operators, nor is there a requirement in the Act for the proposed list of maintenance providers.  NATA is concerned that the NPRM does not adequately justify the inclusion of Part 135 10-or-more operators into this rulemaking.  NATA believes that the FAA must consider the unique aspects of Part 135 air carrier operations or limit a final rule on this matter to Part 121 air carriers as required by the Act.  NATA indentified the following areas of specific concern within the NPRM for consideration by the FAA.

 

List of contract maintenance providers

Proposed 135.426(h) sets forth the requirement that an operator must provide “its FAA Certificate Holding District Office… a list that includes the name and physical (street) address, or addresses…for each maintenance provider that performs work for the certificate holder, and a description of the type of maintenance, preventive maintenance, or alteration that is to be performed at each location.”  By their nature, Part 135 companies operate on an ad-hoc basis to locations that are unpredictable and often change.  Unlike Part 121 operators that operate on tightly defined schedules of operation to and from defined destinations, Part 135 operators fly to thousands of airports worldwide and it is not atypical for a flight to originate for a destination to which the carrier has not previously operated.  Part 135 operator compliance with this proposal is not an impossible task with regard to scheduled maintenance that is typically conducted at pre-determined times and locations.  However, the need for unplanned maintenance can and does frequently occur.  For Part 121 scheduled carriers, this unplanned work is not a significant issue as they are likely already to have plans for providing maintenance at the airports defined in their schedule.  Proposed 135.426(h) creates a significant challenge for an on-demand carriers in regards to unplanned maintenance away from the aircraft’s home base.  In order to assure the ability to respond quickly to these types of maintenance events, the operator would need to have a list comprising virtually every maintenance facility from every airport to which they might someday operate.  Such a list would fail to meet the FAA’s goal of directing oversight toward locations that are actually used by carriers as most of the facilities on the Part 135 operator’s list would not be in regular use, if ever used at all.

 

NATA is concerned that the FAA has promulgated new regulations without alleviating requirements found in the existing regulations.  In the preamble text, the FAA notes that air carriers are already required to list their maintenance providers in their maintenance manuals.  The FAA’s basis for the new list requirement is that the existing standard has proven inadequate.  NATA questions the need for creating an additional process to track contract maintenance providers as opposed to implementing changes to the existing process to correct the noted inadequacies.  Should the FAA move forward with the proposal to require air carriers to submit regularly updated lists of contract maintenance providers, NATA believes the FAA should eliminate the existing requirement for operators to maintain lists of providers in their maintenance manuals.

 

Should the FAA move forward on a final rule that includes Part 135, NATA suggests limiting proposed § 135.426(h) in two ways.  First, NATA recommends limiting the list to those maintenance providers that perform “covered work” as defined in the FAA Modernization and Reform Act of 2012.  The FAA should exclude from the requirement those contract maintenance providers that perform only preventative maintenance and alterations.  Furthermore, NATA suggests an exception for those providing covered work when that work is performed in “unplanned circumstances.”  Similar to the exceptions §§ 120.35(c) and 120.39(c) related to drug and alcohol testing, the regulations should permit operators to address unforeseen maintenance needs when they arise without needing to update the list of providers.  For example, should an aircraft blow a tire upon landing where there are no maintenance providers already on the operators list, the operator should be still able to contract the repair to a maintenance provider on site.  Administrative work should not detract from the actual maintenance work being done, as long as the operator properly verifies that the work has been done in accordance with its approved maintenance procedures.  This simplified list would be easier to maintain while not compromising or lowering the standard of safety.

 

“Directly in charge” and “Supervision and control”

Proposed § 135.426(a)(3) and (4) provide the following definitions:

 

(3) Directly in charge means having responsibility for covered work performed by a maintenance provider. A representative of the certificate holder directly in charge of covered work does not need to physically observe and direct each maintenance provider constantly, but must be available for consultation on matters requiring instruction or decision. (Emphasis added)

           

(4) Supervision and control means that a representative of the certificate holder must be available to personally observe the covered work being done to the extent necessary to ensure it is being done properly, and when the representative is not physically present to observe the work, the representative must be available for consultation on matters requiring instruction or decision. (Emphasis added)


Section 135.426 subsection (b) and (d) then require that work performed by a contract maintenance provider be under the supervision and control of the air carrier and that the air carrier be directly in charge of such work (note that the proposed regulations concerning Part
121 contain similar provisions).  NATA believes that there are several problems with the construction of these definitions and their proposed use.

 

The definition of supervision and control is internally contradictory; “a representative of the [air carrier] must be available to personally observe covered work… [Except] when the representative is not physically present to observe the work…” Such a definition provides no clarity to an air carrier attempting to determine a method for compliance.  Either the air carrier is required to have a representative “available to personally observe” or they are not.

 

Secondly, the definition of “directly in charge” uses the term “directly in charge” as an operative component of the definition. This circular definition provides little insight regarding what a regulated party must do in order to fulfill the “directly in charge” criteria.

 

Finally, the definitions of “directly in charge” and “supervision and control” apply to the same contract maintenance events and are explicitly contradictory.  Section 135.426(b) and (d) require that an air carrier is both directly in charge and maintains supervision and control over covered work performed by a maintenance provider.  Directly in charge does not require the air carrier to have a representative personally observe the covered work while the definition of supervision and control does require personal observation of the covered work (previously noted internal contradictions notwithstanding.)

 

NATA believes that the FAA must clearly indicate the air carrier’s responsibility to observe covered work performed by maintenance providers personally.  Reliance upon the proposed definitions and their applicability will create confusion among the regulated parties and likely the FAA’s own workforce regarding the required standard.

 

NATA believes that the FAA must take into consideration the differences in size and scope of operations between Part 121 and 135 air carriers when revising these definitions and their application.  Part 135 operators are frequently small businesses with limited staff and resources to provide on-site oversight.  NATA agrees that it is reasonable for the FAA to require that an air carrier have a representative “available for consultation on matters requiring instruction or decision,” but questions the value of a requirement to have a representative “personally” available or “present to observe.”  NATA believes that during the FAA’s revision and clarification of these definitions, should the FAA choose to institute a standard requiring Part 135 to provide in-person oversight of contract maintenance operations, the agency should provide a justification including an analysis of the impact upon small businesses for public comment.

 

Definition of Essential Maintenance

Proposed § 135.426(a)(2) provides a definition of covered work to include essential maintenance.  Essential maintenance is defined as:

 

“…maintenance that could result in a failure, malfunction, or defect endangering the safe operation of an aircraft if not performed properly or if improper materials are used.”

The term “endangering the safe operation” is a very ambiguous phrase that could encompass nearly every type of maintenance; any failure, malfunction or defect encountered could fall under the provision of “endangering the safe operation of an aircraft” if broadly interpreted.  NATA suggests that the FAA provide a more clear definition of “essential maintenance” that also includes specific examples of what is and is not viewed as essential.

 

Implementation

The proposed one-year-after-final-publication deadline would be an insufficient amount of time for Part 135 operators to comply.  Part 135 operators are overwhelmingly small businesses that will need to redirect resources to comply with this regulation.  The process of creating and updating a list of contracted maintenance providers is a substantial administrative burden.  NATA recommends at least 24 months for compliance should a final rule include Part 135 operators.

 

NATA appreciates the opportunity to present the views of our members for consideration.

 

Sincerely,

 

Michael France

Director, Regulatory Affairs

NATA

(703) 403-1717 (c)

mfrance@nata.aero