2006-NM-120-AD - Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ, -135ER, -135ER, 135KE, -135KL, and -135LR Airplanes; and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP Airplanes

Comment on [Docket No. FAA-2006-25892; Directorate Identifier 2006-NM-120-AD] RIN 2120-AA64 This proposed action requires inspection and/or modification of certain windshield temperature controllers pursuant to manufacturer issued 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 legal interpretation of a document is a question of law and not of fact. Therefore, unless the service document is incorporated by reference a court of law will not consider it in interpreting the airworthiness directive. We are concerned that failure to incorporate essential service information 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. 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. This is especially true with foreign manufacturers where the concept may not exist or be implemented in the country of origin. In the instant case we are aware of a Rosemount Aerospace temperature controller that carries the part number of 3801D2 approved for replacement of Embraer P/N: 145-38558-505. (Rosemount PMA supplement number 191 dated September 5, 2002) We do not have sufficient knowledge to determine whether the Rosemount part suffers from the same deficiencies as the Goodyear part. We are concerned that it may and because the proposed action restricts applicability to the Goodyear part the possibly defective Rosemount parts may continue in operation. We believe, at the very least, the Rosemount part should be addressed in the action to advise whether the regulatory action is intended to apply or not apply to this particular part. We have, in the past, issued several comments on proposed actions suggesting the incorporation of language designed to extend applicabili…