2005-NM-145-AD

Comment on [Docket No. FAA-2006-23842; Directorate Identifier 2005-NM-145-AD] RIN 2120-AA64 This proposed action requires replacement of certain parts deemed to be not airworthy with "new and improved" parts pursuant to certain OEM and/or manufacturer service documents. The Modification and Replacement Parts Association (MARPA) submits the following comments: Item #1 Frequently airworthiness directives are derived from service information originating with the type certificate holder or its suppliers. Manufacturer service documents are privately authored instruments generally enjoying copyright protection against duplication and distribution. When a service document is incorporated by reference pursuant to 5 U.S.C. 552(a) and 1 CFR part 51 into a public document such as an airworthiness directive, it loses its private, protected status and becomes itself a public document. If a service document is used as a mandatory element of compliance it should not simply be mentioned, but should be incorporated into the regulatory document. Public laws by definition must be public which means they cannot rely for compliance upon private writings. Moreover, the interpretation of a document is not a question of fact, but of law bounded by the figurative four corners of the document. Therefore, unless the service document is incorporated by reference a court of law will not consider it in determining the impact of the airworthiness directive. We are concerned that failure to incorporate Boeing Service Bulletin 777-27-0034, dated February 11, 1999, Boeing Service Alert Bulletin 777-57A0048, dated September 9, 2004 and Boeing Service Bulletin 777-57-0054, dated February 23, 2006 could result in a court decision invalidating the airworthiness directive. Incorporated by reference service documents should be made available to the public by publication in the Document Management System (DMS) keyed to the action that incorporates them. The stated purpose of the incorporation by reference method of the Federal Register is brevity; to keep from expanding the Federal Register needlessly by publishing documents already in the hands of the affected individuals. Traditionally, "affected individuals" has meant aircraft owners and operators who are generally provided service information by the manufacturer. However, a new class of affected individuals has emerged since the majority of aircraft maintenance is now performed by specialty shops instead of aircraft owners and operators. This new class includes maintenance and repair organizations (MRO), component servicing and repair shops, parts purveyors and distributors and organizations manufacturing or servicing alternatively certified parts under 14 CFR § 21.303 (PMA). Further, distribution to owners may, when the owner is a financing or leasing institution, not actually reach the persons responsible for accomplishment of the airworthiness directive. To further enhance and promote aviation safety we therefore request that the service documents deemed essential to the accomplishment of this proposed action be (1) Incorporated by reference into the regulatory instrument, and (2) published in the DMS. Item #2 Type certificate holders in their service documents universally ignore the possible existence of PMA parts. We suspect from the language in the proposed airworthiness directive that the required service bulletins may specify parts to be replaced with specific "new and improved" parts. Because of the restricted availability of the required service information we are unable to determine with precision what parts are to be replaced and whether the defective or "new and improved" parts may have alternatively certified replacement parts approved under 14 CFR § 21.303 (PMA). If so, then this requirement may conflict with 14 CFR § 21.303. If the part numbered part determined to be defective has been replaced by a PMA part carrying a different part number, the AD will not mandate its remov…