BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ Airplanes - 2006-NM-133-AD

Comment on [Docket No. FAA-2006-25851; Directorate Identifier 2006-NM-133-AD] RIN 2120-AA64 This action requires work be accomplished pursuant to certain OEM and/or manufacturer service documents. The Modification and Replacement Parts Association (MARPA) submits the following comment: Frequently airworthiness directives are based upon 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 in an airworthiness directive it should not simply be referenced, 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. Since the interpretation of a document is a question of law and not of fact, a service document not incorporated by reference will not be considered in a legal finding of the meaning of an airworthiness directive. We are therefore concerned that failure to incorporate essential service information could result in a court decision invalidating the airworthiness directive. In AD [Docket No. FAA-2006-24955; Directorate Identifier 2006-CE-31-AD; Amendment 39-14768; AD 2006-19-11] RIN 2120-AA64 the FAA has advised that documents are not incorporated by reference into proposed actions; only in final actions. We can, however, point to hundreds if not thousands of final rules where the documents were not incorporated by reference either intentionally or by oversight. We can also provide hundreds of references where the incorporation by reference text has been included in the proposed rule. Thus there doesn't seem to be a consistent policy from action to action and across all Directorates on how to treat this issue when there perhaps should be one. 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. We therefore request that the service documents deemed essential to the accomplishment of this action be (1) Incorporated by reference into the regulatory instrument, and (2) published in the DMS. The FAA has stated, both in publications and in conversations, that the FAA is "looking at" at publishing incorporated by reference service documents in the DMS. We note that "looking at" a policy or procedure is not exactly the same as implementing it. Therefore, we will continue to comment and request until such time as a decision has been implemented. Jack Buster Chair, AD Committee Modification and Replacement Parts Association