It took awhile, but the FAA finally expanded on its ill-fated initial attempt at “clarifying” the definition and understanding of the term actively engaged, as used in regard to new and renewal inspection authorization in FAR 65. Here we summarize and comment on this latest policy statement.
The problem
Initially, in the opinion of many in the aviation maintenance field, this so-called problem did not even have to be addressed. Some in the FAA however felt they had to add further complexity to an already simple process that has been going on for more than 40 years now. You would think that there are many other important issues that the bureaucrats (as FAA's Bill O’Brien called them) could spend their time with rather than this one, which has caused no particular problems in its execution during all the years of its existence … so why should it now? They said that the issue of actively engaged has caused confusion among ASIs and aircraft maintenance personnel and its definition has varied over time. Most in the business have never heard of any confusion at all … those of us in general aviation certainly haven’t. The confusion issue appears to have been raised simply to address the subject directly for some unexplained other reason.
This alleged confusion developed simply because the renewal section includes an additional requirement to renew, other than the five clear ways cited in the part 65.93 regulation, any one of which for years has been the only one required to renew. They said that the renewal applicant must also comply with the additional requirements of the new applicant.
The language does not seem to recognize that the holder of the inspection authorization already had complied with these requirements when he applied initially for the authority. It seems redundant to many to require a renewal applicant to comply again and again with the initial requirement actively engaged when he has been performing or participating in aircraft maintenance using this authority in most cases for many years.
Of course, it does seem logical to include this in the initial application requirements, but that should be the end of it. Nonetheless, FAA felt compelled, at this late date, to attempt to further define actively engaged and to spell out in detail who can be considered actively engaged. The initial attempt failed completely to include hundreds of people who held the authorization and caused a flood of almost a thousand comments and objections to the proposal as then published in the Federal Register November 2010.
Policy, not regulatory change
We have to keep in mind that the FAA says this is not a regulatory change. It is simply a policy change and technically needs no publication and opportunity to be commented on. However, the fact that FAA felt it was required to publish and solicit comments on the proposal suggests clearly that it expected a loud objection to the change and the reasoning behind it. Some even commented that this was an attempt at regulatory change by the back door … FAA stated it was not.
However, problems can develop when administrative agencies attempt to not only create laws but interpret them as well. Supreme Court Justice Scalia said in a recent case that “… though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well …” Talk America vs. Michigan Bell, 564 US__(2011). Although it was not the case here, Justice Scalia clearly states his general dislike with agencies attempting to create their own laws and also to interpret them any way they want. This type of analysis was a point of contention with some people who were vocal about the changes proposed.
Generally, maintenance people felt the regulation was already specific enough in requiring that … an individual must be actively engaged, for at least the previous two-year period, in maintaining aircraft, to be eligible to either obtain or renew an IA. The FAA felt that there was a need to further define and expand on just what actively engaged meant and who and what was done by the individual to comply.
The change
After discussing and listening to the hundreds of people directly concerned, the FAA published the most recent revised directive (Federal Register August 2011) which thankfully took into consideration most of the commentators' objections. FAA now says OK lets include many more people in the actively engaged definition … it is now much larger, as it said in the directive a broad definition, which seems to satisfy most of the concerns raised by the commentators. It would appear at this time that anyone presently holding an inspection authorization, must of necessity, be renewed because of this new broad definition, unless they died, or were seriously incapacitated.
There were other changes to the directive. One is the change to the seemingly automatic granting of inspection authority and renewal to FAA’s maintenance inspector employees under the initial directive. In the first proposal it had “carved out” a specific exception for its own inspectors who would be granted automatic authority. This of course meant FAA employees could work on and annual their own aircraft only, since they are prevented from doing any “commercial maintenance” activity for ethical reasons (more likely government liability reasons). Therefore, working on their own aircraft was then the only real reason for the ASI to have inspection authority.
In the revised directive the “carved out” exception was removed because it was not necessary … most if not all ASIs would be actively engaged under the new broad policy as would any applicant, because of their inspectors job description. Of course, at the same time, by removing the carved out exception the FAA also removed any suggestion of special treatment for its employees, which could have had some specific legal problems down the road.
Examples of those included
The new policy directive continues and describes a listing of individuals who would be afforded renewal privileges and includes, but is clearly not limited only to such people as:
- individual IAs, like ASIs, engaged in their own personal aircraft inspection and maintenance
- retired mechanics providing occasional or relief IA and maintenance services
- individuals providing maintenance service in rural areas not serviced regularly by many IAs
- individuals providing specialized maintenance and IA services (fabric, composites, etc.)
- those who do part-time or occasional maintenance and IA work to inspect vintage or rare aircraft
- aviation instructors at Part 147 schools, public and private (they were not included in the initial directive)
- anyone directly related to airworthiness, i.e. technical representatives, instructors at seminars related to IA renewal and airworthiness, maintenance coordinators, (all on full time, part time or occasional basis).
It seems clear that the policy is to include as many people as possible who have something to contribute to aviation safety, and or otherwise possessed of the requisite experience in the maintenance of aircraft.
There will be other questions that come up due to the great number of variations in the way people work. As the FAA said in its policy statement … ”It is problematic to list every situation that could be considered actively engaged and that approach may exclude situations where an ASI would determine meets the regulatory requirements. Additionally, as indicated in the proposed policy, the FAA values the substantive nature of experience rather than a strict quantity formula.”
Appeal available
In the remote event an individual feels that he or she has been unfairly denied either an initial or renewal IA authority because of arbitrary, capricious, or discriminatory action by the FAA, he or she has the opportunity to appeal such denial.
Although the issuance of IA authority is not certificate action and therefore has no formal appeal procedure, the individual can still raise his voice and seek redress through a form of an appeal to the Aviation Safety Consistency and Standardization Initiative Office (CSI) thru the AVS (Aviation Safety) office concerned. This procedure requires the review of any questioned or disputed action at every level of the AVS management chain. This is no more or less than a summary administrative review by the same people who are in the management chain, but it can bring serious attention to the individual problems with the bureaucrats.
This review by higher levels of FAA management, will be complete and thorough, without fear of any retribution. Keep in mind that this process can be used for any review you might have with any FAA action of any kind. This program was instituted Sept. 18, 2009 and through the process, sooner or later complaints should get the personal attention of the Administrator and his staff.
Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He is a USAF veteran. Send comments to [email protected].
