New FAA Contract Maintenance Rules Fail to Live Up to their Promise

The FAA has published a proposed rule entitled “Air Carrier Contract Maintenance Requirements.”  This proposed rule would require air carriers to develop contract maintenance instructions that would be subject to the acceptance of the local FAA office in a way that opens up the air carrier’s business relationships to second-guessing and micro-management by the FAA.

Among other justifications, the proposed rule is meant to be a response to section 319 of the FAA Modernization and Reform Act of 2012.  That provisions requires the FAA to enact regulations that ensure the following:

(c) TERMS AND CONDITIONS.—Covered work performed by a person who is employed by a person described in subsection (b)(3) shall be subject to the following terms and conditions:

(1) The applicable part 121 air carrier shall be directly in charge of the covered work being performed.
(2) The covered work shall be carried out in accordance with the part 121 air carrier’s maintenance manual.
(3) The person shall carry out the covered work under the supervision and control of the part 121 air carrier directly in charge of the covered work being performed on its aircraft.

The Congressional Conference Report for this law explained the Congressional intent:

121 air carriers are responsible for ensuring that all maintenance, whether performed by the air carrier itself or performed by another entity under contract with the carrier, is conducted in accordance with the air carrier’s maintenance program. When maintenance is performed by another entity, the air carrier continues to be responsible for the oversight of these maintenance providers, who are considered to be an extension of the air carrier’s maintenance program. This provision will ensure that oversight responsibility for maintenance remains with the 121 air carrier recognizing supervision and oversight of individuals may be with a Part 145 repair station.

The FAA has proposed a rule that arguably goes beyond the intent of Congress.  Rather than merely requiring the air carriers to be directly in-charge of the covered work, the proposed rule would require them to develop complicated “policies, procedures, methods, and instructions” for the oversight of contract maintenance work, and then leaves the review and acceptance of these provisions to the unfettered discretion of the FAA inspector assigned to the air carrier. Despite stating that the rules must be acceptable to the FAA, the rule provides absolutely no guidance as to what will be acceptable or unacceptable to the FAA.

This is exactly the sort of vague language that has historically lead to complaints about inconsistency in regulatory interpretation and allegations that FAA inspectors are adding new de facto requirements to the regulatory structure which were never intended a the time of the promulgation of the rule.  The same law that gave rise to this requirement also required the FAA to convene a regulatory consistency panel, which would “determine the root causes of inconsistent interpretation of regulations by the Administration’s Flight Standards Service and Aircraft Certification Service” [section 313 of the law].  The answer to the Congressional concern over regulatory consistency is right here: a rule that is so vague on its face as to be practically unintelligible, where the standard for compliance will be whatever your local inspector chooses to accept, is a recipe for inconsistency.

In some respects, the rhetoric of the preamble to the proposed rule fails to live up to the reality of the proposal.  For example, The preamble to the rule stresses the importance of sharing the air carrier’s maintenance manual with the maintenance contractor.  Current law requires a repair station performing work for an air carrier to follow the provisions of that air carrier’s maintenance program; but some contracts and licensing agreements have actually inhibited air carriers from sharing that data.  If a repair station must follow the air carrier’s manual in order to comply with this regulation, then the FAA has agreed (in the written preamble) that corresponding air carrier regulations should require the air carrier to provide the repair station that does the work with the applicable portions of the manual(s) that make up its maintenance program.  This would support the air carrier’s existing regulatory responsibility for the airworthiness of the work performed on the aircraft, and it would also be consistent with the FAA’s oft-stated concept that the maintenance provider is really an extension of the air carrier’s maintenance program.

Unfortunately, the proposed rule fails to provide explicit language in Part 121 or in Part 135 that would oblige the certificate holder to provide the repair station that does the work with the applicable portions of the manual(s) that make up its maintenance program.  This failure seems to be a major oversight on the part of the drafters of the rule.  The proposed language merely require the air carrier to have “policies, procedures, methods, and instructions” that will ensure that the maintenance is performed in accordance with the certificate holder’s maintenance program and maintenance manual.  By using this sort of indirect language, the FAA is inviting industry to circumvent the FAA’s clear intent, and they are inviting ad hoc re-interpretations of their intent.  This language should be redrafted to more directly require sharing of relevant maintenance instructions.

One concern that ASA has is that these provisions could be used to affect air carrier purchasing practices.  After drug-and-alcohol regulations were altered to “flow-down”to sub-tier contractors, many maintenance organizations asked their parts suppliers for evidence of their drug-and-alcohol testing programs.  These inquiries were only forestalled by FAA Federal Register language that specified that purchase or procurement of parts, absent contracted maintenance tasks, was not subject to that rule.  ASA intends to ask the FAA to include similar language in the preamble to this final rule.

Comments on the proposed rule are due to the FAA by February 11, 2013.  They should reference docket number FAA–2011–1136.

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About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

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