As PAMA and NATA prepare to meet in Tampa, a number of issues are on the regulatory hot plate
By Jordanna Smida, Assistant Editor
As the Professional Aviation Maintenance Association (PAMA) and the National Air Transportation Association (NATA) gear up for their AS3 - Aviation Services & Suppliers Supershow in Tampa, FL, a number of issues are at the forefront.
Those issues affecting both organizations include Part 145 and the Occupational Health and Safety Administration's ergonomics standard. As PAMA welcomes its new president, the organization is in the midst of a Notice of Proposed Rulemaking (NPRM)regarding adulterated samples in drug testing. At the top of NATA's agenda are the American Aviation Access Initiative's (AAAI) and fractional ownership, along with regulatory issues regarding flight/duty time, flight training trade barriers, and airplane rides.
Dissecting Part 145
PAMA filed comments on the NPRM regarding Part 145 primarily because of the impact on the individual maintenance professional, says Doug McNair, technical manager for PAMA. The organization opposes particular elements dealing with exposure to individual personal liability, significant background checks, and recordkeeping. "The primary reason we proposed these things was that the requirement to demonstrate various levels of achievement or background weren't supported by record keeping or tracking this information to begin with. You had to prove things that you had no data or basis to demonstrate," he says.
McNair suggests that if individuals are required to demonstrate their experience throughout their career, then some type of record tracking requirement is needed.
Another area of concern for the organization regards new training and qualification requirements imposed by the Part 145 rule. McNair states that PAMA's dissatisfaction is due to no training or qualification standards for the requirements. "You have to demonstrate certain levels of proficiency but there are no standards to which you would obtain that," he explains. McNair offers the example of one statement which says aerospace maintenance professionals must be tested. McNair and others question what the maintenance professionals are supposed to be tested for.
These questions, McNair indicates, are one of the reasons for miscommunication in the industry regarding these issues. "That rings very hollow and just adds to the bureaucracy of the business and the misinterpretation of and inconsistent interpretation by the FAA and the industry. No one would really know when they've achieved the right level," he states. Other standards from groups like OSHA or other occupational standards could be adopted instead, McNair suggests.
Though PAMA's main concern with Part 145 focuses on areas that clearly affect the individuals, McNair said all comments seemed to be similar from all groups effected by this rule. "Even though we all have different motivations, the bottom line was not too far off."
Drug testing ethics
Though random drug testing is part of the job for many aviation employees, as regulated by the Department of Transportation, a few loopholes exist in the rule, in particular regarding adulterated samples, which could cost employees their jobs.
"An adulterant is anything that turned up in a sample that shouldn't be there," states McNair. He explains that adulterants are typically used to mask or cover up something in a sample, but can also be introduced unintentionally and through the handling process.
According to Jason Dickstein, attorney and president of the Washington Aviation Group, the Department of Transportation's drug testing rule requires that anyone who conducts maintenance or any other safety-sensitive work for an air carrier, Part 121 or 135, is required to be tested for drugs. "Under the regulations, if you have a confirmed positive, meaning you can demonstrate that there are in fact drugs in the specimen, then there are certain actions that must be taken," Dickstein explains. The employer has the choice to fire the individual or set up some form of a rehabilitation program, he explains. Following rehabilitation, a second confirmed positive would result in a job loss. "It's a two strikes and you're out system," Dickstein states.
The controversy lies within the rules regarding adulterated samples. There are products on the market that can mask or have a chemical effect on drug metabolites, Dickstein explains. "There is a regulatory assumption that if you put an adulterant in your sample, then there is no reason to adulterate your sample unless you are trying to mask drug metabolites. The problem lies in that if there is an adulterant in your sample then it's assumed you put it in there," he states.
It is possible that a sample can be contaminated with other things once it is in the laboratory, Dickstein says. He explains that some of the adulterants that are appearing in samples are soap and chlorine, both found in cleaning agents used in laboratories. "Unfortunately, while you are given a sterile sample jar, the jar is not the only thing that touches the sample," he states.
Samples are split into two when the laboratory receives them, Dickstein explains. A person who tests positive for drugs has the right to have the remainder of their sample tested at another lab. "Right now, if the test shows adulterants, you lose all your rights and it is treated as a failure to provide a viable sample. We are definitely getting into a situation where individuals are being considered guilty until proven innocent. And people's individual rights are being trounced upon," he states.
McNair is also frustrated with the "guilty until proven innocent" rule. "The whole notion that an adulterated action ends a career is wrong and contrary to due process," states McNair.
An Emergency Revocation Notice will be mailed to any person whose sample is adulterated, in which the recipient has ten days to appeal their suspension, Dickstein says. The catch, however, is that the appeal must be filed within ten days of when the notice was mailed, not when received, he explains.
Dickstein warns maintenance professionals of this rule and offers the example of Linda Corrigen, an A&P technician at Federal Express whose sample was deemed adulterated. "It is ridiculous to believe that this woman had any drugs in her system," he says. "She'd gone through twenty random tests over the years prior." Dickstein explains the situation: Corrigen appealed the suspension and the administrative law judge ruled that it was more likely that adulterants had been added to the sample due to mishandling. However, the government appealed the decision to the National Transportation Safety Board (NTSB) on the grounds that Corrigen's appeal was not filed within ten days of when the notice was mailed on Sept.17. Corrigen received the notice on Sept. 22 and filed her appeal on Sept. 30. The government brought back the case on a technicality; technically Corrigen's appeal was due Sept. 27. In a split decision, the NTSB ruled 3-2 that Corrigen had not filed in a timely fashion, a three day difference, Dickstein notes.
Dickstein indicates that what makes this case even more interesting is that there is rarely ever a split decision among the NTSB. A member of the board filed a descent with the FAA indicating that the interest of justice was not being served, he states. "Here is a woman who could prove on the merit that she did not have drugs in her systemÉ And the FAA is attacking the emergency revocation on this ten-day basis and is using it to their advantage."
McNair shares Dickstein's frustrations over the ten-day appeal rule. The ten-day process was originally designed to keep the FAA moving forward, McNair says. "The FAA is hanging people on it and is using the rule meant to keep them moving forward against people," he states.
A new Notice of Proposed Rulemaking was issued by the Department of Transportation on the rules regarding adulterated samples. The deadline for comment was Apr. 7.
NATA: Managing 145
For NATA, Part 145 is also an issue. Part 145 includes the rules that govern the facility including types of staffing, management structure, types of access equipment, etc., explains Ric Peri, manager of technical services for NATA. Just like PAMA, NATA disagrees with many parts of the rule, stating, "The proposed rule was taking it from a generic standard to an extremely micro-managed standard." Peri is frustrated with the rule, questioning what the purpose of Part 145 really is "The FAA never clearly identified what was wrong and it wasn't real clear what they were trying to fix," he says. According to Peri the FAA has spent 10 years working on this change during which time the idea of total quality management (TQM) was introduced to the government. "I see elements of juvenile TQM. Part of the philosophy is that you go to performance-based rules," he states.
Peri also notes that most general aviation repair stations employ A&Ps, which are already registered with the FAA. "You have checks and balances in the system and the repair station is focused on producing the highest level safety product at the most affordable price. Safety is never compromised because of trying to put a cheaper product out, but it is part of the process that maximizes efficiency. The FAA, rather than being focused on the product that rolls out the door, is focused on developing this micro-management process that basically makes the FAA part of your management team," Peri states.
As with McNair, Peri's main frustration with the rule is its vagueness. "The whole proposal is vague and included things like the facilities were supposed to provide adequate lighting. The frustration was that there are so many standards in the industry and globally that the FAA could have adopted. They had a wonderful opportunity to modernize the rule," he states.
Another area that NATA is skeptical about is the process for accountability, Peri says. "I can't explain why the FAA wanted it. If you were to get a job at a repair station you'd have to document your life's work history by month and year. For someone who's advanced through the system, it gets tough to do," he states.
Peri indicates the need for the FAA to consider modernizing the rule. "Modernization of this rule lends itself to a creation of a second repair station rule that focuses on the extremely large aircraft they use in air transportation and letting everyone else operate under the existing 145 rules," he states. He adds that while he can appreciate that the FAA has its hands full with airline maintenance, the FAA is crippling general aviation while it tries to get its arms around the commercial carriers.
NATA's proposal on Part 145 was to create a "Part 146 which is applicable to aircraft over 100,000 lbs. and power plants over 12,000 lbs. thrust rating, leaving the rest of the industry to operate under 145," he says. "Because of the quality systems in the proposed rule, even the smallest repair station that contracts to a 146 station or an air carrier directly would have to have the quality system of 146. But, it becomes a business decision for those people who choose to cater to the larger transport industry," he says.
"We have a minimum standard, 145, which is quite adequate for the industry, and has served us well. If the FAA finds there is need to elevate the management of the airlines, then create a 146 for the airlines," he states.
NATA hosted over 33 meetings in 25 states to talk to its members regarding the Part 145 issue, which is now in the review process, Peri says. "The FAA now has to evaluate our comments and see if they were significant enough to amend the proposal and whether or not they can admit the proposal without going out on supplemental ruling," he says.
Peri says that no date has been set for a decision yet, but he hopes to receive a decision by late summer or fall of this year.
As the debate over fractional ownership flooded the industry this year, the Fractional Ownership Aviation Rulemaking Committee (FOARC) was hard at work. The group, representing Part 91 and 135 operators, among others, made its proposal to FAA for a new Subpart K under Part 91. "It is a regulation that was modeled after industry guidelines and practices as well as Part 135," states Andy Cebula, vice president of NATA. Subpart K requires minimum equipment for the aircraft that are similar to 135, requires management specifications similar to Part 135, outlines how fractional programs will conduct operations, safety procedures, recordkeeping, crew training, and equipment maintenance.
The rule also outlines the owner's responsibilities for operation of the aircraft. The unique thing about this rule, according to Cebula, is that there is a similar level of responsibility that is placed onto the program manager. "It's similar to a shared responsibility. There is responsibility for both the fractional owner and the operator where in a management arrangement you don't have that kind of a system," he states. Cebula notes that this makes it easier for the FAA to take action for compliance and enforcement.
One of the FAA's challenges was how to regulate new fractional programs because of the differences from traditional management. Cebula says Subpart K will remedy this situation. "That has made it a little more difficult for the FAA to ensure that there is regulatory accountability. It [Subpart K] goes out of its way to make sure that happens," he says.
The FOARC proposes changes to Part 135 that, says Cebula, have been needed for a long time. Two key issues, he notes, are the 60 percent landing rule and the requirement for approved weather reporting. "In the committee we recommended that those aspects of 135 be changed provided that the charter operators are complying with certain minimums that are established in Subpart K that actually go beyond what 135 currently requires for training, group pairing, cockpit resource management, and minimum crew qualifications," Cebula says. "But we're doing it based on the fact that the fractionals for the last 15 years have been operating in a way that they were adhering to all these requirements and they have been able to prove that you can safely extend the landing formula and that you can fly into airports that do not have approved weather reporting."
As far as those operating under Part 91, Cebula says, "I think that there is no doubt that the fractionals will be subject to a much higher degree of regulatory oversight than they currently experience." However, he adds, it isn't much different than how most of the programs are already operating.
An NPRM on the issue is expected from the FAA by September.
Flight & Duty Time
An ongoing issue for NATA is the regulation of flight and duty time. Cebula, whose frustrations are shared among members of the industry, says, "We have been working that issue to death. The FAA has not taken an active stance on enforcing that notice on membership. The idea is that they have said in essence that they are not going to push applying it to the 135 community. It's like a sword hanging over our heads."
NATA Chairman Charlie Priester, president and CEO of Priester Aviation, an FBO/135 operator at Palwaukee, IL, agrees with Cebula. "The one-size-fits-all is not appropriate in this case. I think we have to absolutely take those steps in our industry to make sure our pilots are properly rested and ready to perform and fly... I think we have to have a difference of criteria," he says.
Cebula says that FAA told NATA's committee in November that it is not planning to enforce the notice, but Cebula is skeptical of what that may ultimately mean. "The problem is they are doing all of this in such a back door way because it's through interpretations of definitions, which have some real questionable legal basis. It's such a gray area," he states.
Another issue on the docket for NATA is drug and alcohol testing exemptions for certain sightseeing flights. According to Jennifer Banks, specialist, government affairs, for NATA, the FAA has approved NATA's petition allowing qualifying members to conduct local sightseeing flights for compensation or hire at certain charity or community-oriented events without complying with drug and alcohol testing requirements. However, NATA is encouraging FAA to reconcile additional burdens the rule places on flight schools. "Flight schools were hopeful that the FAA would also amend or rectify the situation and allow them to offer the public airplane rides without having to be on a drug and alcohol testing program, which is a financial burden," Banks says.
In an attempt to remedy the situation for the flight schools, Banks says that NATA's Flight Training Committee is continuing its talks with the FAA. "We understand there may be an NPRM in the works to discuss air tours and air plane rides versus sightseeing flights, but we haven't seen anything yet," she states.
For years the United States' flight schools have marketed to students from Europe to train at their schools. However, recent circumstances may make that next to impossible.
Banks says that in the past European students could train in the U.S. and then return to their home countries and transfer their certifications to meet the requirements of their civil aviation authorities.
The U.S. and Europe have enjoyed a balanced relationship, but "When the JAA's (Joint Aviation Authority) recommendations were going to be implemented, many of the countries' individual aviation authorities did away with their conversion programs to become JAA-certified," Banks says.
The ensuing confusion has led to students opting to not come to the U.S. to train. "They don't know how they will convert their certifications to their country," she states.
The JAA is a collection of representatives from Europe's individual Civil Aviation Authorities, Coyne explains, noting it as one of the causes for some of the confusion on this issue. "I think our best success will be with Congress," he states.
"The only real leverage we have on this issue is to try to turn the FAA and Congress into allies so that the FAA will use the influence it has with regard to Europe."
NATA has held meetings with FAA officials, some of whom also are working with the JAA on a number of issues. "We're working with the FAA, but I'm very frustrated because they are slow.
Coyne, confident that the Europeans are fighting a losing battle, states, "There are different ways to skin the cat and we're hopeful that in one way or another we will be able to continue this. Fundamentally their potential pilots want to learn to fly in the most efficient and cost-effective manner they can and that's definitely in the U.S. where we have lower cost airplanes, better weather, prominent flight schools established, and the availability of instructors."