ARSA Offers Advice For Dealing With Confusing FAA Rules
I’m not a lawyer. I regularly joke that this might make me more . . . or less . . . trustworthy than my colleagues at ARSA’s management firm.
Regardless of your personal experience with the legal profession, in this industry it is usually nonlawyers who need to understand and apply legal requirements. Successfully ensuring aviation safety depends on attention to detail, curiosity and willingness to press for the right answer. Pursuit of those ends has forced me to study law as a dilettante.
For the sake of that study, I decided to take on the FAA directly by questioning its ability to issue an airworthiness directive (AD) against a parachute. The now-ongoing exchange is not unlike what certificate holders experience with local inspectors: You may or may not obtain the right answer, so you keep asking.
The discussion (so far) has centered on the applicability of 14 CFR Part 39: “FAA’s airworthiness directives are legally enforceable rules that apply to the following products: aircraft, aircraft engines, propellers and appliances” (§39.3).
Scouring the relevant definitions, the parachute at issue cannot be included under any of the items to which Part 39 applies. The agency’s initial response noted that “parachute” is included as an example in the statutory definition of “appliance” (49 U.S.C. §40102), which necessitated that I follow up to highlight that this doesn’t override the law’s prerequisites necessary to the determination. The skydiving harness/container system against which the AD was issued is not installed in or attached to an aircraft nor can it be used to operate or control an aircraft in flight.
There is work left to do. At my last check-in, the FAA’s legal team was still pondering the situation. As the engagement continues (see No. 4 below), the work I’ve done so far provides a road map for my fellow “layman lawyers” in aviation who must deal with the government:
1. Identify. In the parachute case, an AD was issued against an item that I knew wasn’t a “product” and was therefore an oddity. In a repair station, rules challenges can emerge from a wide range of actions including new capabilities, facility changes or an inspector’s bad day.
2. Research. Before even raising the issue to ARSA Executive Director Sarah MacLeod, I read the rules. Stymied, I asked for guidance, being sure to reference (and hyperlink) every section of the CFR consulted and eventually chase down the relevant points in the U.S.C.
3. Condense. With help, the issue was cut to the most basic question (“not asking the right question” is a key failing of many laymen and lawyers alike). Drafts were worked and reworked until only the essential points remained. The entire exchange, which took hours of concerted effort, can be seen at arsa.org/parachutead.
4. Don’t give in or up. The first response from the agency was wrong and should not be allowed to stand. Value is obtained only by persisting until the answer is right.
Brett Levanto is vice president of operations at Obadal, Filler, MacLeod & Klein, managing firm and client communications in conjunction with regulatory and legislative policy initiatives. He provides strategic and logistical support for the Aeronautical Repair Station Association.