NEW CHALLENGES
WHO IS RESPONSIBLE FOR AIRWORTHINESS?
July 2003
Airworthy.US sent the following to Senators Brownback, Pat Roberts, Maria Cantwell, and Patty Murray, and
to the U.S. Senate Aviation Subcommittee, and to the president and chief counsel of the General Aviation Manufacturers Association.
Dear Sirs;
I read the disturbing online article, "House Maintenance Measure Pits OEMs Against Repair Stations," Monday,
June 30, in "The Weekly of Business Aviation" (McGraw-Hill) which stated that Senators Brownback, Pat Roberts, Maria Cantwell,
and Patty Murray wrote to key senators on the House/Senate
reauthorization conference committee asking them to omit the provisions contained in H.R.2115, SEC. 420 AVAILABILITY
OF MAINTENANCE INFORMATION.
The article quoted them, collectively, as saying "A major concern with Section 420 is the impact it would
have on the ability of manufacturers to protect their intellectual property. If the repair stations are successful in their
attempt to acquire intellectual property that is not related to safety, manufacturers will lose control of the intellectual
property they paid to develop." And, "Stripping manufacturers of their intellectual property will stifle aviation research
and investment, precisely at a time when the U.S. is struggling to maintain our leadership in aviation and aeronautics research."
I wholeheartedly support the deletion of Section 420 from H.R.2115. ARSA, according to the article, argues
that Section 420 is required because the current situation (current law) is harmful to safety. The reality is that the current
law is harmful only to maintenance providers who do not comply with 14CFR. No one forces repair stations to maintain aircraft.
When a maintenance provider chooses to engage in the business of maintaining aircraft, they must comply with 14CFR.
In order to better ensure that Section 420 is deleted, I researched it and applicable regulations.
I offer the following arguments that address the errors in the proposed Sec. 44728:
Regarding (a)(2), The crux of the issue is defining who is required to comply with the Instructions for
Continued Airworthiness (ICA).
The law is clear regarding who has the responsibility to comply with the instructions for continued airworthiness:
14CFR sect. 91.405 requires the owner or operator to maintain the aircraft.
Domestic, flag, and supplemental airlines are responsible for
airworthiness of aircraft on their operating certificate, including maintenance and third-party, contracted
maintenance per 14CFR sect. 121.363.
Commuter and on-demand airlines are responsible for the airworthiness of the aircraft on their operating certificates,
including maintenance and third-party, contracted maintenance per 14CFR sect. 135.413.
Charter, club, and non-scheduled airlines are responsible for
airworthiness of the aircraft on their operating certificate, including all maintenance per 14CFR sections
125.243 and 125.245.
When owners / operators choose to contract with a third party to perform maintenance, alteration, or preventive
maintenance on owner's / operator's aircraft, the owners / operators do not abrogate responsibility for the airworthiness
of their aircraft. The contracted maintenance provider, once the contract (in whatever form) is executed, is required to comply
with 14CFR sect. 43.13, which requires that each person performing maintenance, alteration, or preventive maintenance on aircraft,
engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer's
maintenance manual or ICA prepared by its manufacturer, or other methods, techniques, and practices acceptable to the FAA.
A contract with an owner / operator does not require the aircraft, engine, propeller, or appliance manufacturer
to furnish ICA to the maintenance provider. If the contracted maintenance provider does not possess the required ICA, and
if the owner / operator cannot provide it, the work cannot be accomplished except when the contracted maintenance provider
presents other methods, techniques, and practices that are acceptable to, and approved by, the FAA.
Current law, 14CFR sect. 21.50(b), requires that the instructions for continued airworthiness be furnished
to the owner of each type of aircraft, engine, or propeller upon its delivery, and thereafter make those instructions available
to any person required by 14CFR to comply with the terms of the ICA.
Manufacturers provide the required ICA to original owners, and make the data available to subsequent owners,
and to any other entity they freely choose, under conditions mutually agreed upon by both parties.
Performance standards for repair stations, 14CFR sect. 145.57(a) requires licensed repair stations to maintain,
in current condition, all manufacturers' service manuals, instructions, and service bulletins that relate to the articles
that it maintains or alters. The law does not require manufacturers to provide ICA to the repair stations, but rather to make
the ICA available to any person required by this chapter to comply with any of those instructions (ref. 14CFR sect. 21.50(b)).
When a repair station, or an individual, cannot arrive at mutually agreeable terms and conditions under which
to acquire ICA from a manufacturer, that repair station or individual simply cannot perform the work, except pursuant to developing
other methods, techniques, and practices that are acceptable to, and approved by, the FAA.
The repair station or individual is not required by Federal law to perform the maintenance, alteration, or
preventive maintenance, but by civil law via a contract. Doesn't the contract become null and void when either party cannot
perform? Could such contracts be considered fraudulent when the service provider does not possess the required means to accomplish
the work promised?
How can ARSA hope to extort ICA from manufacturers and new law from the US government by such methods?
Regarding (b)(3), ARSA has inserted the word alteration into the ICA definition. The ICA is currently well
defined (ref. 14CFR sections 21.41, 21.31, 23.1529, 25.1529, 27.1529, 29.1529, 31.82, 33.4, and 35.4). Alteration is addressed
in 14CFR sections 21.93, 21.95, 21.97, and 21.113, among other sections.
Regarding (c)(1), the phrase "essential to continued airworthiness" means that which is required to ensure
that an aircraft conforms to its type certificate and is in condition for safe operation (ref. 14CFR sect. 21.183, among numerous
others).
Regarding (c)(2), ARSA's concerns are addressed in the current 14CFR sections 21.93, 21.95, 21.97, and 21.99,
among others.
In closing, Section 420, if implemented, would be an erosion of airworthiness, and an assault on capitalism.
I do not assume that you have not addressed the issues thoroughly; I am compelled to provide argument my experience allows
in support of the deletion of Section 420.
Sincerely,
Mark E.J. Fay
SEPTEMBER 2003 GOOD NEWS UPDATE:
Airworthy.US has learned that Section 420 was removed from the Conference Report on the FAA Reauthorization
bill. There is no chance of this language being enacted at this time. However, ARSA and others may try again on another bill
later in the year/session.
AEROSPACE WORKFORCE CRISIS
AUGUST 5, 2003
The following letter to the editor (here with corrections to typographical errors), Aviation Week &
Space Technology was written in response to David M. North's editorial in the August 4, 2003 issue of AW&ST,
"Aerospace workforce crisis: Industry must work harder to find solution."
This letter was published (with minor editing) in the August 25, 2003 issue of Aviation Week &
Space Technology.
Dear Messrs. North, Asker, and Bond;
The best of mankind's youth start life with "a sense of enormous expectation, the sense that one's life is
important, that great achievements are within one's capacity, and that great things lie ahead." Ayn Rand described this rare
individual, the type needed for the aerospace industry's workforce, in the introduction to the 25th anniversary edition of
"The Fountainhead" in 1968.
How to motivate such people to seek fulfillment in aerospace?
The haunting photo of several outsourced scapegoats, charged with 110 counts of murder and manslaughter following
the ValuJet debacle in 1996, hardly serves as an inspiration to pursue a career in aerospace.
In the highly regulated commercial/civil segment of aerospace, FAA leadership has abrogated its responsibility.
It is effectively tasked only with perpetuating and protecting the image of a safe mode of transportation. Rank and file FAA
are disgruntled.
As an industry insider, I have seen continuous erosion of compliance with the law that governs virtually everything
in commercial/civil aviation.
As industry continually implements programs such as TQM, Six Sigma, and, most odious, ISO 9000, the law is
buried deeper beneath ever-increasing layers of "quality," becoming almost irrelevant and certainly less familiar to those
designing, building, and maintaining aircraft.
Additionally, the US government has pressured airlines and aerospace manufacturers to actively seek out and
employ, not the most qualified, not the best of mankind's youth, but rather a "diverse" work force. Those hired primarily
for their ethnicity or gender often lack the knowledge, skills, and attributes necessary to perform their jobs, much less
to drive true improvements needed for the industry to progress. Those who were hired on merit leave in despair, or are forced
out.
When people owe their positions to their gender or ethnicity rather than to competence and integrity, they
have little basis for making informed decisions. They rely on their more developed political dexterity to maintain their positions
- to the inexorable destruction of the aerospace industry.
Outsourcing by manufacturers and airlines results in much of the work being performed, in effect, by day-laborers,
not by the highly skilled engineers and technicians so necessary in this leading-edge, high-tech industry. As suppliers to
manufacturers and airlines, these outsourced entities are required to aggressively pursue diversity.
To paraphrase Machiavelli, it is difficult to diagnose a disease in its early stages when it is easy to cure,
and it is easy to diagnose a disease in its later stages when it is difficult to cure.
The aerospace workforce crisis is in its later stages.
The cure will be painful to some, but the first step is to recognize it.
Sincerely,
Mark E.J. Fay
