Last November, an industry colleague asked a novel version of a familiar question. Trying to make sense of a new role inside the FAA, this former association member asked ARSA Executive Director Sarah MacLeod for thoughts on a manual revision procedure.
The repair station manual in question noted that proposed revisions would be sent to the FAA for comment, with no response constituting “tacit acceptance” for institution of changes. The questioner asked for a legal or regulatory basis for the term and for any guidance related to the timeframe given for this “tacit” process.
Tacit adjective
ta-sət
1: expressed or carried on without words or speech
the blush was a tacit answer
—Bram Stoker
2: implied or indicated (as by an act or by silence) but not actually expressed
tacit consent
On the one hand, confusion over the implications of “acceptability” is quite familiar. ARSA routinely writes and trains on the meaning of the term and the freedom it allows for the showing and finding of compliance. It would be easy, even for a savvy leader of a world-class trade association, to focus on the questions inherent in what is “acceptable to” or “accepted by” the Administrator – if there is a difference – and how the use of the terms impact manual revisions.
However, the question in the “tacit” issue goes further. The direct answer is the term does not have a regulatory or legal basis. The nuance of its meaning, if used, relates to the larger responsibility of repair stations to show compliance and the specific matter of designing manual revision procedures that can be followed. Sarah’s analysis:
“Looking at it from an inspector’s perspective, I would point the applicant to the plain language of the regulation: The manual must be acceptable to the agency by showing it meets all the paragraphs of §§ 145.209 and 145.211. If it does, it must continue to do so.
Part of showing compliance is explaining the method of keeping the manual current and identifying how/when to notify the agency of updates…I would encourage the applicant/certificate holder to use a method it will follow faithfully. As for ‘tacit’ acceptance or approval, it really doesn’t mean anything as it is not the agency’s responsibility to ensure compliance.”
A certificate holder’s responsibility is to show compliance for a government official that looks to find it (that FAA personnel are much better at finding noncompliance is a great frustration to ARSA and affront to commonsense oversight). A repair station is entitled to its certificate under § 145.53(a) when it meets the requirements of part 145, which include the procedures it creates for itself as part of the manual requirements in §§ 145.209 and 145.211. Both sections have paragraphs requiring the applicant and thereafter the certificate holder to have “[p]rocedures for revising the…manual and notifying its responsible Flight Standards office of revisions to the manual, including how often the responsible Flight Standards office will be notified of revisions.”
There is nothing in that plain language requiring “acceptance by,” whether tacit or in writing, of a repair station’s manual(s). The applicant/certificate holder cannot demand the agency provide any approval or acceptance; likewise, the agency representative cannot mandate that the manual be approved or accepted before a certificate holder can implement changes. Of course, an applicant can have procedures that will not allow changes without acceptance or approval by the agency, but it shouldn’t if it wants a “living” manual that can be followed in real time.
ARSA’s provides a Proposed Manual Revision Letter including the following language for use in delivering changes to the FAA:
If your comments are not received by [30 days from submission], the company will assume the material is acceptable and the revision will be distributed in accordance with [manual revision procedure paragraph name/numbers].
Part 145 allows a repair station to state in its manual that it allows any number of days (including 0, which is a number) for the agency to review an update. Regardless of the revision procedure timeframe, the manual must comply with the plain language of the regulations.
Such analysis is the nuts and bolts of regulatory compliance. The facts of the plain language are spoken through the code of federal regulations – nothing tacit about them – but making good on this reality demands our constant attention.
Brett Levanto is vice president of operations of Obadal, Filler, MacLeod & Klein, P.L.C. managing firm and client communications in conjunction with regulatory and legislative policy initiatives. He provides strategic and logistical support for the Aeronautical Repair Station Association
