Airbus Model A300 B4-605R Airplanes and Model A310-308, -324, and -325 Airplanes - 2006-NM-146-AD

Comment on [Docket No. FAA-2006-26047; Directorate Identifier 2006-NM-146-AD] RIN 2120-AA64 This proposed action requires actions to be taken pursuant to certain OEM and/or manufacturer service documents. The Modification and Replacement Parts Association (MARPA) submits the following comment: 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, especially when the private writings originate in a foreign country. 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 (IBR), a court of law will not consider it in interpreting the airworthiness directive. We are concerned that failure to incorporate by reference the relevant service information could result in a court decision invalidating the airworthiness directive. We have been advised that service documents are usually not incorporated into proposed actions (NPRM's), only into final actions. There is, however, no indication in the proposed action that the FAA intends to incorporate by reference the necessary service information. The reader is therefore unsure of the FAA's intent with regard to IBR. We therefore request future proposed actions indicate the FAA's intent perhaps by including the following or similar statement: "We intend to incorporate by reference the following publications:" 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. We believe this publication should occur when the NPRM is published so as to permit the public to review and comment on the entire proposed action. From MARPA's standpoint we desire to review the mandated service information for possible involvement of parts or components manufactured under 21.303 by our members. If such a part or component is involved we may need to investigate further before submitting any comment that may arise. 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 D…