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Natalie Fletcher
5 years ago
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1 Submitted electronically to: U.S. Department of Transportation Docket Operations, M-30 West Building Ground Floor Room W New Jersey Avenue SE. Washington, DC The undersigned represent certificated entities that will perform the maintenance actions required by the referenced rulemaking. The majority of these individuals and entities are small-to-medium-sized entities that will be directly impacted by the agency s proposed actions. We request the agency (1) Place specific and required information in the docket and thereafter extend the comment period for one hundred twenty (120) days; or, (2) Withdraw the rule until such information can be placed in the docket. The undersigned also support a similar request submitted by multiple associations and individuals on this date by the Aircraft Owners and Pilots Association (AOPA). The reasons for these requests are: (A) The Administrative Procedures Act (APA) was not followed; there is no objective evidence in the docket to support the agency s proposal. Numerous courts, including the Supreme Court, have ruled on the APA requirements to provide sound reasoning for a rule, part of which is the objective data used to determine facts and perform technical analyses. Without objective evidence the proposed action is arbitrary and capricious on its face. 1 1 See, among other cases, United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 251 (2d Cir. 1977)., Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973), and Chamber of Commerce of U.S. v. S.E.C., 443 F.3d 890, 899 (D.C. Cir. 2006).

2 Page 2 of 5 The agency did not adhere to its own procedures that are based upon the requirements of the APA. Although the rulemaking states PS-ANE was followed, that document requires specific information and data, which is not present in the docket. Furthermore, Airworthiness Directives Manual (FAA-IR-M C), dated May 17, 2010, was created to ensure these important rulemakings were based upon sound information and reasoned judgment. That document states, with emphasis added: 2. Maintaining the AD Docket. We must maintain a docket for each AD action in FDMS. The docket must include enough information to support the AD action. Don t include any drafts of the AD or any copies not identical to the version sent to the OFR. Destroy all paper copies once placed into FDMS. 3. AD Docket Contents. Except for proprietary data, the AD docket must contain any documents that support the 14 CFR part 39 action. The following information, at a minimum, must be placed in the AD docket at website a. Record of technical decisionmaking (i.e., the version of the AD action that is published in the Federal Register or emergency AD); b. FAA reports, summaries or lists of facts, data, or reports that support the AD action; c. ADs or other similar documents issued by an international civil aviation authority; d. Regulatory Evaluation Form; e. Records of each ex parte contact or series of contacts; f. Comments received on the proposed rulemaking (if any); and g. Records of approval of IBR documents. (Emphasis added.) On the date the docket opened and as of today, the only information present was the objective engineering data and information provided by Danbury AeroSpace (referenced in item e. above) and the actual AD referenced in item a. No evidence of the agency s deliberations or objective standards required by PS-ANE or FAA-IR-M C supporting the FAA s statements was present. Furthermore, no evidence that the documents required to comply with the proposed action were appropriately incorporated by reference.

3 Page 3 of 5 (B) The elements for compliance with the Small Business Regulatory Enforcement Fairness Act (SBREFA) and Regulatory Flexibility Act (RFA) were missing. The preamble indicates the certification for compliance with the RFA is in accordance with the Department of Transportation Policies and Procedures for Implementing Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking. However, that document makes it absolutely clear (emphasis in the original) that: The 1980 RFA listed three things that a final regulatory flexibility analysis (FRFA) must contain; SBREFA modified two of those and added two new ones. The new requirements for a FRFA follow, with the changes noted in bold: A succinct statement of the need for, and objectives of, the rule; A summary of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available A description of the projected reporting, record keeping and other compliance requirements of the rule, including an estimate of the classes of small entities, which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record. A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency that affect the impact on small entities was rejected. A requirement that the agency publish the FRFA or a summary of it in the Federal Register rather than just a statement of how the public could obtain copies, as was permitted under the 1980 RFA. When certifying that a rule does not have a significant economic impact on a substantial number of small entities, the agency must

4 Page 4 of 5 provide "the factual basis for such certification," rather than just "the reasons" for the certification. The docket contains no evidence these strict requirements were followed; there is a mere certification in the rulemaking itself and a single sheet repeating that inadequate statement. As the agency s guidance makes clear, SBREFA only updated the RFA, which has always required the factual basis for [the] certification. If there is any doubt small businesses are being impacted by this rulemaking, it is abundantly clear it is almost exclusively small businesses that are impacted. Most owners and operators of the general aviation aircraft within which the engines and cylinders at issue are used are either sole proprietors or involved in small businesses. As the agency well knows, the fact an individual s rather than company s name is associated with the aircraft s registry is not indicative of its use. Individual mechanics who work on general aviation aircraft for compensation or hire are either sole proprietors or involved in small businesses. These are the individuals who will be fulfilling the requirements of the AD by researching records, performing the inspections and replacements, making compliance records, approving the work for return to service, and filing information with the FAA. The vast majority of repair stations that work on the engines and cylinders are small businesses. These are the entities that will be fulfilling the requirements of the AD by researching the records, performing the inspections and replacements, making compliance records, approving the work for return to service, and filing information with the FAA. The company that produced the cylinders at issue is a small business. Due to the fundamental flaws in this rulemaking, the undersigned urgently request the FAA: (1) Place information required by the APA, RFA, SBREFA, numerous Executive Orders and its own guidance in the docket and provide the industry an additional 120 days from the date the docket is complete to respond to the proposal; or, (2) Withdraw the rule in its entirety until the required information can be placed in the docket.

Page 5 of 5 We stand ready to assist the agency in fulfilling its safety mission under the constraints of congressional and executive mandates and to provide substantive comments

Busch A&P/IA 2008 National Aviation Maintenance Technician of the Year CEO Savvy Aircraft Maintenance Management, Inc. cc: Dorenda D. Baker dorenda.baker@faa.

5 Page 5 of 5 We stand ready to assist the agency in fulfilling its safety mission under the constraints of congressional and executive mandates and to provide substantive comments to the docket once it is complete. Sarah MacLeod Executive Director Aeronautical Repair Station Association T: Michael D. Busch A&P/IA 2008 National Aviation Maintenance Technician of the Year CEO Savvy Aircraft Maintenance Management, Inc. cc: Dorenda D. Baker dorenda.baker@faa.gov Colleen D Alessandro colleen.dalessandro@faa.gov Jurgen E. Priester jurgen.e.priester@faa.gov Vince Bennett vince.bennett@faa.gov Chris Poreda chris.poreda@faa.gov Hatice Baser hatice.baser@faa.gov Diane S. Romanosky diane.s.romanosky@faa.gov

BAE SYSTEMS (OPERATIONS) LIMITED

Page 1 2010-05-05 BAE SYSTEMS (OPERATIONS) LIMITED Amendment 39-16214 Docket No. FAA-2010-0130; Directorate Identifier 2009-NM-087-AD PREAMBLE Effective Date (a) This airworthiness directive (AD) becomes