Aircraft Maintenance Technology - 50

ARSA INSIGHT

By Sarah MacLeod

FEAR NOT
No individual in industry or the agency should be "afraid" to question the
exact meaning and intent of a regulation. No "reasonable" person should be
afraid to expand knowledge and understanding of safety requirements.

SARAH
MACLEOD is
managing member of Obadal,
Filler, MacLeod
& Klein, P.L.C.
and a founder
and executive
director of the
Aeronautical
Repair Station
Association. She
has advocated
for individuals
and companies
on international
aviation safety
law, policy and
compliance
issues for 30
years.

50 JUNE/JULY 2019

S THERE A WAY FOR THE FAA TO BETTER MANAGE ITS
field and regional agents ... so that certificated entities don't have to consistently deal with an agent
that is being overly difficult due to a lack of experience,
a personal bias, are overloaded or overwhelmed with
work, or are unresponsive?"
That question was submitted to ARSA's inquiry system
- a tool providing the "access to industry expertise" proclaimed in the association's list of member benefits. The
response, which was published in a recent edition of the
hotline member newsletter, described the FAA programs
that address disputes between certificate holders and
agency personnel. When employed, these avenues are
hard to follow and often take years to reach a resolution. That, however, should not stop the industry from
using the tools provided - whether an official program
or simply through ongoing professional discussion with
agency personnel.
Unfortunately, most certificate holders (and applicants) are "forced" to deal with recalcitrant inspectors
or unreasonable demands in the interest of business and
because, frankly, the certificate holder believes that the
agency's "approval" means that something will never
be questioned again. Or, more importantly, the belief
and sometimes the fact that you will win the battle (in
challenging the inspector) but lose the war (by suffering
long-term conflict after having been "difficult").
ARSA finds that people want to believe the agency
"knows" its rules and compliance standards and will
make sure those requirements are fulfilled by the industry. That is blatantly and completely untrue - the agency
has the responsibility to create and enforce rules but not
to follow them. It has complete discretion in enforcement
(it only has to enforce regulations that are required by
"law" such as taking the certificate of persons convicted
of certain federal crimes associated with aircraft parts).
If you doubt that fact, the association can point you to
several court cases. The laws and courts have also made
clear that the agency doesn't have to follow its "orders" and is
immune from lawsuits for exercising its "discretion." In other
words, even if the agency "approves" a type design that is
clearly flawed, it cannot be sued - the certificate holder is
always responsible for compliance ... period.

So why are individual certificate holders (or applicants) afraid to "take on city hall"? Well, in ARSA's experience it is because it is damn hard work and it takes
consistency and discipline. Also, individuals responsible
for obtaining and maintaining certificates are not the
persons with the purse strings. The "demand" is that
a company obtain a certificate, if it takes going along
to get along, so be it - the price of not understanding
and absolutely "knowing" the regulations can be paid
"later." If the FAA representative is "upset," the project
will take longer and every step after that is a "fight." Also,
quite frankly, most certificate holders are not steeped in
regulatory compliance, they are in quality, production, or
some other discipline that is more focused on business
demands than aviation safety requirements.
It is equally interesting, however, how "afraid" aviation
safety inspectors and other FAA representatives are of
"lawyers." When a certificate holder finally "has enough"
and reaches out to a law firm, the agency representative
will no longer "talk" to the applicant or company contact.
The company is "threatened" that the FAA lawyers will
have to be involved or that the company will be deemed
uncooperative or anti-compliant.
As a lawyer who understands the regulations often
better than either the applicant or the agency representative, I find this a bit amusing - why is the government
afraid? Those same inspectors are turned to by the FAA
lawyers as "expert witnesses" in legal enforcement cases.
Ex-FAA representatives are used by industry lawyers the
same way; why? Isn't the plain language of the regulation backed by the safety intent in a preamble to the
rules enough? It takes "experts" to explain the regulations to the lawyer? It seems all turned around to this
legal professional.
No individual in industry or the agency should be
"afraid" to question the exact meaning and intent of a
regulation. No "reasonable" person should be afraid to
expand knowledge and understanding of safety requirements - that information and data should be aggressively sought so that the agency, industry, and flying
public can have confidence that we know what we are
doing and will fix what is wrong.

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