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Part 145

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Get Ready, Get Set, Go! Foreign 145 Certificates are Back on the Table, as TSA Issues its New Rule.

Many of MARPA’s PMA members also hold repair station certificates, so the entire MARPA community will be interested to know that the decade-long saga that is the Repair Station Security rule is finally coming to a resolution.  The rule is scheduled to be published in the Federal Register on Monday.

The repair station security rules are authorized under the repair station security statute (49 U.S.C. 44924). That statute barred the FAA from issuing any new foreign repair station certificates until TSA security audits were completed for existing stations. Now that the rules are out, once TSA has audited all existing repair stations, the FAA may be able to once again start issuing foreign repair station certificates. Of course, this must be balanced against the comments of FAA Deputy Associate Administrator John Hickey who suggested last Spring that the FAA may not have the resources to process the applications when TSA issues its rules.

Throughout the foreign certificate hiatus, we’ve advised MARPA members who are interested in pursuing new foreign repair station certificates to file applications with the FAA in order to secure their place in the queue when the restrictions are lifted.  In private meetings with FAA officials, we’ve been told that the FAA does not intend to strictly follow the first-in-first-out approach to these applications, but companies who desire new foreign repair station certificates ought to start working immediately in order to be able to pursue and support those applications with the FAA.

The final rule contains the following requirements:

  • To Whom Does the Rule Apply?: The regulations apply to repair stations certificated by the FAA under Part 145, except repair stations located on a U.S. or foreign government military base. All repair stations are subject to inspection as provided in the rule and to Security Directives should there be a security need. However, the rule text requires only certain repair stations, discussed below, to carry out security measures on a regular basis.
  • TSA Inspection Authority. Repair stations must allow TSA and other authorized DHS officials to enter, conduct inspections, and view and copy records as needed to carry out TSA’s security-related statutory and regulatory responsibilities. For repair stations not required to carry out security measures on a regular basis (i.e., those repair stations not located on or adjacent to an airport), TSA does not intend to inspect such facilities, except (1) for compliance with security directives issued by TSA and with airport security programs required by TSA (for those repair stations that are included in an airport security program), and (2) to respond to security information provided to TSA by U.S. or foreign government entities.
  • Implementation of Security Measures: The security measures in this rule cover repair stations that are on or adjacent to certain airports. TSA will consider a repair station to be “on airport” if it is on an air operations area (AOA) or security identification display area (SIDA) of an airport covered by an airport security program under 49 C.F.R. part 1542 in the United States, or on the security restricted area any commensurate airport outside the United States regulated by a government entity. TSA will consider a repair station to be adjacent to an airport if there is an access point between the repair station and the airport of sufficient size to allow the movement of large aircraft between the repair station and the area described as “on airport.”
  • What are “Security Measures?”: Repair stations required to implement “security measures’ will be required to (1) designate a point of contact(s) to carry out specified responsibilities; (2) prevent the unauthorized operation of large aircraft capable of flight that are left unattended; (3) verify background information of those individuals who are designated as the TSA point(s) of contact; and (4) verify background information of those individuals who have access to any keys or other means used to prevent the unauthorized operation of large aircraft capable of flight that are left unattended.
  • Security Directives: Repair stations are required to comply with Security Directives (SDs) issued by TSA. We had objected to Security Directives to the extent that they could represent rulemaking activities promulgated in the absence of notice and comment rulemaking procedures. TSA has added language to the final rule to clarify that repair stations may comment on SDs issued by TSA, but TSA has imposed on itself no obligation to respond to such comments. Thus, we remain concerned that Security Directives could be used to promulgate new rules in circumvention of the notice-and-comment requirements of the Administrative Procedures Act.
  • Notification of Deficiencies; Suspension of Certificate and Review Process: The regulations describe the process whereby TSA will notify the repair station and the FAA of a security deficiency identified by TSA and provide an opportunity for the repair station to obtain review of a determination by TSA to suspend its operating certification. Such a suspension would be an immediately-effective suspension that would not be stayed through petition for review (note that 49 U.S.C. 44924(c) already requires the FAA to suspend or revoke a certificate upon the advice of TSA). This could give TSA tremendous power to impose interpretations of their standards that may be beyond the published scope of the rule, and the repair station may be largely powerless to seek review of those standards, because the only practical way to seek review is to be accept suspension during the entire period of the review process (TSA is allowed to grant itself an extension so the time limits on TSA action may be meaningless). TSA would perform an internal review of the petition for review and would create the record but then the matter would be subject to review by a Court of Appeals.
  • Immediate Risk to Security; Revocation of Certificate and Review Process: The regulations specify that when TSA determines a repair station poses an immediate risk to security, TSA will notify the repair station and the FAA that the certificate must be revoked. The regulations also provide the process for the repair station to obtain review of such a determination. Many of the same concerns regarding suspension apply to the revocation process as well.

The new rule can be found online at http://origin.library.constantcontact.com/download/get/file/1102873717486-941/TSA+Security+Rule+Published.pdf.

SBA Repair Station Rule Roundtable

As previously mentioned on this blog, the FAA’s proposed Aviation Repair Station rule is very likely to have noticeable secondary effects on other companies, including PMA parts manufacturers.  On November 5, MARPA and other members of the aviation community, as well as representatives from the FAA, met for a Small Business Administration roundtable to discuss the proposed rule.

The FAA, although not able to take comment at the meeting, offered a presentation on the purpose and intent of the rule and were available to attempt to answer any questions posed by attendees.  The FAA explained that the purpose of the rule is to align FAA regulations with current industry practices and aircraft technology.  The FAA also stated that they believe they have addressed the numerous comments that resulted in the rejection of similar proposed rules in 1999 and 2006.

Industry attendees expressed a number of concerns with the proposed rule.  One concern is that due to the slow nature of the rule-making process, current industry practices have already moved beyond that which is contemplated by the proposed rule. There also appears a risk of creating confusion as the rule introduces inconsistent terms to the regulations.

The rule may also create significant adminstrative burdens.  It would require that each of approximately five thousand repair stations renew their certificates with 24 months of the rule becoming effective.  There is some doubt as to whether the FAA has the resources to process so many renewals in such a limited time frame, particularly faced with the reality that most applications would occur toward the end of the 24-month window.

The rule creates additional administrative burdens on the repair station side, as supervisory personnel will be required to be on hand to oversee work performed, changes to capabilities lists will have to be approved by the FAA or through self-evaluation, and substantial new employee training requirments are implemented.

Additionally, the new “Component Rating” propsed by the rule poses a particular threat to PMA manufacturers.  Repair stations will be expected to maintain a component capabilities list in their operations specifications.  Because of the burdens associated with amending and updating op specs, many repair stations may have difficulties in efficiently updating their components capabilities lists.  This is especially troubling for PMA.  Even though a PMA part is most likely maintained in the exact same way as its OEM corrollary part, a repair station may still be required to call out that specific PMA part number in its op specs in order to perform maintenance.  Given the smaller population of PMA parts, many repair stations may not be willing to go through the op spec amendment process to add the PMA part to their capabilities list.

The cumulative effect of these additional burdens may have the result of decreasing the number of repair stations allowed to repair PMA parts even though they are technically proficient.  Smaller repair stations may also find themselves priced out of business by the addtional financial costs associated with the new administraive burdens.

The FAA will accept public comments on the proposed rule through November 19, 2012. Comments should reference FAA Docket Number “FAA–2006–26408.”

Proposed Repair Station Rule Could Interfere with Repair of PMA Parts

Today, the FAA issued a significant new proposed rule for repair stations.  One of the elements that would be updated is the ratings system for repair stations.The proposed changes could have an unintended effect of limiting the ability of the repair station industry to repair PMA parts.

One significant difference is that FAA is proposing a new “Component” rating that would replace the Radio, Instrument, and Accessory ratings. The proposed “Component” rating would allow repair stations to work components that are not installed on an airframe, powerplant, or propeller (bench work). A repair station with a Component rating would be required to have an Airframe, Powerplant, or Propeller rating to install components or appliances. The FAA expects that such a product-level rating would be limited to only installation and removal. The preamble to the rule states that the FAA expects that Component-rated repair stations would have a list of their components in their operations specifications. In light of the difficulty now faced by some repair stations in amending their operations specifications, keeping the component list in the op specs would likely make it very difficult for a component repair station to add new components to their list of permissible components, which in turn would probably cause many smaller component shops to stagnate as new products come out but the operations specification amendment process limited their ability to add them as capabilities.

For PMA parts, this could raise an interesting difficulty.  Even though most PMA parts are maintained in exactly the same way as the OEM corollary part, a repair station might not be permitted to maintain the PMA part if the part was not on its operations specifications.  Because the population of PMA parts is smaller than the population ofOEM parts, it is reasonable to believe that some repair stations will not go through the op spec amendment process to add a PMA part number to their operations specifications.

This would have the unintended effect of decreasing the repair stations that are legally permitted to repair a PMA part, even though they are technically qualified.

The FAA will accept public comments on the proposed rule through August 20, 2012. Comments should reference FAA Docket Number “FAA–2006–26408.”

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