It has taken the Transportation Security Administration (TSA) more than 10 years to come up with their final rule regarding security against terrorist incursions into certified repair stations. Is this urgent or not? If you wonder why another layer of so-called security had to be created you need only refer to the Vision 100-Century of Aviation Reauthorization Act of 2003; it mandated the creation of additional rules to improve security at certain repair stations. Blame your Congress. In addition, a whole new cadre of government workers to inspect and manage the new security programs is also created. Remember, TSA are the people who inspect your baggage at the airport.
The standard answer one gets from TSA regarding why we need more regulation is simply that it was ordered by Congress to do it.
The need?
Many of the people commenting on the need for security regulation at repair stations argued that the stations already have adequate security or are already well regulated. Repair stations now have adequate security in place and get enough regulation. They have quality controls, employee background checks, access controls, and general safety procedures already approved by the Federal Aviation Administration (FAA). Add to that drug and alcohol and DEA surveillance, and it begins to get repetitive. Why do we need more administration by another separate government organization?
TSA’s simple answer to these concerns is that its new rules will reduce the likelihood that a terrorist could commandeer a large aircraft capable of flight and use it as a weapon as in 9/11. It somehow fears that the terrorist will jump into a large passenger aircraft under repair at a MRO facility, manage to taxi to a runway and take off and fly it into a building. This of course requires that the repair station is on or within taxi range of an airport runway, an essential item in this case. This may seem farfetched to many of us, but they think it is possible. Anything of course is possible. Nothing like this has happened in the 10 years since this TSA security was authorized without TSA during all this time and previously. I doubt that it will ever happen, the terrorists have too many easier targets, without serious risk already. They don’t need anymore.
And yes, the new rules only apply to repair stations that work on transport aircraft … those over 12,500 pounds. Repair stations that deal with smaller aircraft are exempt from the rule, on the theory that they are not big enough to be effective weapons. However, if a station supplies parts or other equipment to the large repair station they could be subject to the rule as well. TSA will decide. Air carrier owned and operated repair and overhaul facilities that conduct maintenance under their 121 or 135 air carrier certificate are likewise exempt from the rule. Again, the simple answer to this is the new rule only applies to Part 145 repair stations, not Part 121 or 135 airline shops. Canadian repair facilities do not operate with a U.S. Part 145 certificate, thus they are also exempt from the rule. Canada has a separate operating authority to work on U.S. aircraft under Part 43.
The rule only applies to foreign repair facilities that have Part 145 repair station authority issued to them by our FAA. Facilities located on military bases both foreign and domestic however are also exempt from the rule. The military have their own security regulations and a lot of guns available, so they don’t need anymore.
Drug and alcohol testing
Regarding drug and alcohol random testing. It was hoped TSA would mandate that foreign repair stations would enact random drug and alcohol testing so that they would do what we do here in the United States. After all, our people are subject to random testing so why not the foreign repair stations? TSA has dismissed this opportunity simply by repeating what the foreign stations say … “this is a matter for the local police to handle and we don’t get involved.” Apparently TSA failed big time, to use this opportunity to require the U.S. certified foreign stations to do random drug and alcohol testing like we do. They therefore reap the benefits and income from working on U.S. transport aircraft without the costs of drug and alcohol testing. Think about it, terrorists could find no better way to control possible subversive elements who work at these facilities than to facilitate their access to drugs. Meanwhile, our facilities and employees continue with the need for random testing.
The regulation authorizing the security regulation by TSA says clearly the need to ”strengthen oversight of domestic and foreign repair stations and to ensure that foreign repair stations that are certified by the Administrator under Part 145 … are subject to an equivalent level of safety, oversight, and quality control as those located in the United States.” We have urged that this means that drug and alcohol testing for U.S. certified foreign repair stations should have been included in the regulation, after all, equivalent means equal to … alas, in the end, our people backed down on this requirement.
Punitive powers
TSA will have the authority to suspend or revoke the operating certificate of errant repair stations. Commentators have urged that this is the domain of the FAA only. Some have said that if the TSA now has this authority in addition to the FAA it will give incentive to them to reduce their surveillance activities and the FAA would lose its oversight of repair stations and just let TSA do it. The FAA would no longer conduct mandatory inspections and thus safety and security would be compromised. TSA says its activity would not duplicate the FAA’s and that their work would supplement not substitute for FAA surveillance. The TSA security measures would be designed to ensure that unattended large aircraft capable of flight, cannot be commandeered and used as a weapon. Many think this is the FAA’s job.
TSA also says that they will not suspend or revoke a certificate. The FAA will do the suspending or revoking on notification by TSA. What’s the difference? TSA still decides whether or not a certificate holder is not maintaining and carrying out effective security measures in accord with its TSA rules. Is it possible that someday we will see the FAA merged into TSA? There is no difference really between safety and security, one clearly involves elements of the other.
TSA says that since certificate action against a repair station initiated by TSA will involve compliance with TSA’s security regulations the basis of the action must remain with TSA and not the FAA or the NTSB. TSA also has specific authority to enforce security – and related regulations and requirements. TSA goes on to say that it will use a progressive enforcement process whereby instances of noncompliance can be resolved with noncertificate action, including counseling, administrative actions, and civil penalties. Sounds familiar …
Give back the certificate?
In order to avoid both FAA and TSA oversight and security regulation, the repair station could of course simply turn in their Part 145 operating certificate and work with licensed A&P technicians without the necessity of a repair station certificate. After all, there is no need for a repair station certificate in order to work on and maintain aircraft. Of course the repair station can get by with lower paid repairmen since licensed A&Ps would require higher pay scales.
In order to respond to this position, TSA says the operator would not be permitted to perform maintenance work on passenger aircraft unless hired by an aircraft operator, in which case the work would be subject to the safety requirements of Part 121 or 135 regulations. One must keep in mind also that foreign repair stations covet the Part 145 certificate issued by our FAA, this is their authority to work on U.S. aircraft and thus open up a large income source they would not otherwise have … eg. Jet-Blue and Southwest as well as other U.S. air carriers use or have used foreign MRO facilities on a regular basis. This can be a major source of income for these companies.
It is difficult to disagree with safety and security regulations…like motherhood and apple pie…but there comes a time when people say enough is enough. TSA will now, for example, conduct security reviews and audits of repair stations located outside the United States ... for sure they will be paper audits of all the 707 repair stations that will come under the rules, while the 451 repair stations in the United States will similarly be affected but also subject to unannounced on-site inspections. Foreign stations will get ample notice in advance and prior permission will be required beforehand.
For the most part the new regulation is narrowly directed at a relatively small group of repair stations. Many others, are as noted, exempt from regulation, the mom and pop shops and similar small repair station operations, but we must always wonder for how long? We all know how government grows … some call it … make work.
There are many more details spelled out in the new regulation and the expanded responses to the many comments filed in response to the NPRM. You can review them all at http://federalregister.gov/a/2014-00415.
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].
