Airbus Model A318, A319, A320, and A321 Airplanes

We do not agree with the commenter's request to indicate our intent in an NPRM to incorporate by reference particular publications. When we reference certain service information in a proposed AD, the public can assume we intend to IBR that service information, as required by the Office of the Federal Register. No change to this AD is necessary in regard to the commenter's request. AD's are legal documents. Factual elements such as assumptions are not probative issues and can not be considered. Regulation by implication is also a poor approach to a problem. A reader is probably justified in assuming that a service document will not be incorporated by reference (IBR) because the FAA's intent is not manifest and the subsequent IBR may rise to the level of a significant change in the NPRM thereby requiring reopening of the comment period. You may be assured you will hear more on this subject in the coming months. Jack Buster MARPA

Comment on [Docket No. FAA-2006-26051; Directorate Identifier 2006-NM-154-AD] RIN 2120-AA64 Paragraph (c) of this proposed action reads as follows: (c) This AD applies to Airbus Model A318, A319, A320 and A321 aircraft, all certified models, all serial numbers, certificated in any category. We question the use of the adjective "certified" for models. What precisely is a "certified" model and does the use of the term imply there exist "uncertified" models that are exempt from the AD? Perhaps the word "certificated" was intended instead, which would make more sense, but was changed to avoid use of the same word twice in the same sentence. We would suggest the word "certified" be dropped as it appears to be both superfluous and confusing. 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 Airbus Service Bulletin A320-49-1068 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. We are unclear whether IBR has been overlooked. 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 publication(s):" 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, consult with the defective parts' 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…