My October 2014 article concerned Cessna’s addition of Airworthiness Limitations (AL) to some of their legacy aircraft service manuals. My article couldn’t be completed because we did not have a ruling from FAA legal to tell us whether the new service manual section was truly mandatory in the eyes of the FAA. It took a long time, but the Letter of Interpretation has been received, and it is very interesting.

A copy of my letter of request to the FAA Office of the Chief Counsel and a copy of their letter of interpretation (LOI) is included with this article and should be fairly self explanatory.

The short version of the implication is that a manufacture cannot retroactively create a burden on an aircraft owner. The FAA can do so, in the form of an airworthiness directive, but must follow certain notification and comment period rules in advance. This is old news and we’ve dealt with it several times in regards to “current” inspection programs and manufacturers’ “mandatory” service bulletins. The difference with the AL is that they are FAA approved and specifically called out by the FAA as required in 14 CFR 91.403(c) and 14 CFR 43.16. The regulations referring to AL do not specify any time limit, so the addition of this new AL in a legacy service manual could be viewed as a way around the system.

The aviation community has a lot of precedent on which to stand showing this new AL had no real authority. Unfortunately, not having clear direction would make for a terrible  mess for someone in court someday. Leaving the subject lay around unchallenged would also encourage manufacturers to use this legal side step again. I figured there had to be some way to get clarification in writing from some high authority in the FAA.

My good friend and colleague, Mike Busch, was a great help in guiding me through the process of asking the FAA legal department for a LOI on the matter. Writing such a letter was a totally new thing for me, so Mike’s experience and assistance was invaluable in creating the letter as well as knowing to whom it should be sent.

My contact at FAA legal was Ed “Skip” Alderman. I’ve had a few telephone conversations with Skip during this process and found him very approachable and helpful. When dealing with people in “high places”, I often feel a bit intimidated, but Skip eased all that tension right off the bat. It took a while to get the LOI, but the results were exactly what we’d expected and more.

An unexpected and very welcomed part of the LOI is the next to the last paragraph explaining the communication between the FAA and Cessna. I’ve not seen that Cessna has made any change to the manual yet, but maybe this LOI will assist some of our foreign owners in convincing their regulatory bodies to not view the AL as “mandatory”.

My first foray into FAA legal matters has been very educational. I know these matters don’t always turn out the way we’d like, but in this case the system worked.

Our letter sent to the FAA:

September 15, 2014

Mark W. Bury (AGC-200)

Assistant Chief Counsel for International Law, Legislation and Regulations

Office of the Chief Counsel

Federal Aviation Administration

800 Independence Avenue SW Washington, DC 20591

Dear Mr. Bury:

I am writing your office with an urgent request for an interpretation of 14 CFR 91.403(c) which requires owners or operators to comply with mandatory replacement times and inspection intervals that are contained in an Airworthiness Limitations section (ALS) of a manufacturer’s maintenance manual or instructions for continued airworthiness. In addition, I am requesting an interpretation of 14 CFR 43.16 which requires maintenance providers comply with the same ALS as 14 CFR 91.403(c). My question specifically relates to a recent revision by Cessna Aircraft Company of their Service Manual for the Cessna 210 in which a new FAA Approved section 2B was added (titled “Airworthiness Limitations”) containing mandatory inspection intervals and component replacement times.

14 CFR 91.403(c) which reads: (c) No person may operate an aircraft for which a manufacturer’s maintenance manual or instructions for continued airworthiness has been issued that contains an airworthiness limitations section unless the mandatory replacement times, inspection intervals, and related procedures specified in that section or alternative inspection intervals and related procedures set forth in an operations specification approved by the Administrator under part 121 or 135 of this chapter or in accordance with an inspection program approved under § 91.409(e) have been complied with.

14 CFR 43.16 which reads: Each person performing an inspection or other maintenance specified in an Airworthiness Limitations section of a manufacturer’s maintenance manual or Instructions for Continued Airworthiness shall perform the inspection or other maintenance in accordance with that section, or in accordance with operations specifications approved by the Administrator under part 121 or 135, or an inspection program approved under § 91.409(e).

If a manufacturer’s maintenance manual for a small piston engine airplane is amended by the addition of an FAA approved airworthiness limitations section (ALS), are the mandatory replacement times and inspection intervals contained therein retroactively mandatory for aircraft operated prior to the publication date of the ALS, or would it require the issuance of an Airworthiness Directive to make those times and intervals retroactively mandatory for operators of such aircraft?

If you determine the ALS is retroactively mandatory to aircraft operated prior to the publication date, wouldn’t that effectively constitute a substantive rulemaking action by the FAA without benefit of the notice-and-comment procedures mandated by the Federal Administrative Procedures Act?

If you determine the addition of an ALS to a manufacturer’s maintenance manual does not make compliance with that ALS retroactively compulsory for an owner who owned the aircraft prior to the publication date ofthe ALS, then please explain what happens if the aircraft is subsequently sold. Is compliance with the ALS compulsory for the new owner?

A letter of interpretation from AGC-200 dated July 9, 2010 addressed a similar question with regard to the issuance of SIDs for the Cessna Conquest which concluded they are not retroactively mandatory unless the FAA issues an AD making them retroactively mandatory.

A difference with the questions presented herein concerning the ALS vs the Conquest SID is the maintenance manual amendment is an FAA approved ALS where SIDs are not FAA approved. Also, there is no regulation calling for compliance with SIDs but 14CFR 91.403(c) specifically does require compliance with ALS with no stated regard to whether the ALS is “current” relative to the particular subject aircraft or component.

Does the fact that the revised maintenance manual ALS is FAA approved and/or that ALS are required compliance items according to 14 CFR 91.403(c) change the application of the reasoning applied to term “current” as in the referenced letter of interpretation on the Cessna Conquest SIDs?

I found at least 3000 Cessna 210 models with the affected cantilever style wing on the US registry. The aircraft was last produced in 1986 and most are past the 3500 hour initial time limit for compliance with the ALS. If it is determined the ALS is required retroactively, then there are many aircraft flying non-compliant with the ALS due to an unaware owner group and maintenance providers. Your assistance in this matter is greatly appreciated.

The Response back from the FAA:

(Page 1)

Mr. Paul New

President

Tennessee Aircraft Services, Inc.

2313 Technology Center Drive

Jackson, TN 38301

Re: Request for Legal Interpretation of 14 C.F.R. §§ 91.403(c) and 43.16 Concerning Whether Requirements in an Airworthiness Limitations Section (ALS) Developed By a Design Approval Holder (DAH) and Approved by the Federal Aviation Administration (FAA) as a Change to Type Design are Mandatory for Operators and Maintainers of an Aircraft if the Type Design and Manufacture of the Aircraft Predate the FAA’s Approval of the New ALS

Dear Mr. New:

This letter responds to your September 15, 2014 request for legal interpretation of 14 C.F.R. § 91.403(c) regarding whether replacement times and inspection intervals contained in an Airworthiness Limitations section (ALS) newly added to the maintenance manual or Instructions for Continued Airworthiness (ICA) by a manufacturer are mandatory for operators of an aircraft that was type-certificated and manufactured before the FAA approved the new ALS as a change to type design. On January 21, 2015, you amended your request, asking us to also address whether 14 C.F.R. § 43.16 (Airworthiness limitations) requires maintenance providers to perform inspections or other maintenance in accordance with the newly added ALS for those older aircraft. For aircraft operated under 14 C.F.R. part 91, the answer to your question is no.¹  These afteradded ALS requirements are not mandatory for operators or maintainers of the affected aircraft absent the FAA’s issuing an Airworthiness Directive (AD) or some other notice and comment rulemaking that would make them mandatory. Cessna included these new replacement times and inspection intervals in an ALS instead of in another portion of the maintenance manual where they would be more appropriate as non-mandatory procedures.

Under 14 C.P.R.§ 21.99(b), in a case where there are no current unsafe conditions,² but the FAA or the design approval holder (DAH) finds through product service experience that changes in type design will contribute to the safety of the product, the DAH may submit appropriate design changes to the FAA for approval. Your inquiry specifically addresses a recent revision to the Cessna Model 210 Service Manual comprising a new FAA-approved Section 2B that added an

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1  As explained later in this response, inspections for aircraft operated under 14 C.F.R. part 135 may have different and

mandatory inspection requirements

2  If the FAA finds that an unsafe condition exists in a product, the FAA issues an Airworthiness Directive (AD) under the authority of 14 C.F.R. part 39, which may require a change to the product’s type design. The AD would specify to which models the AD and any associated design changes would apply-some of the requirements could have retroactive application to earlier models. Except for emergency ADs, the FAA issues ADs under notice and comment rulemaking procedures in accordance with the Administrative Procedure Act (APA), specifically 5 U.S.C. § 553.

(Page 2)

“Airworthiness Limitations section” containing “mandatory” inspection intervals and component replacement times.3   This new ALS is a change to the product’s type design incorporated under the provisions of § 21.99(b). This now current type design for the Cessna Model 210 would be the type design for any newly-produced Cessna Model 210 aircraft-it is not the type design for previously-produced Cessna 210 models. You stated that Cessna produced the last Model 210 in 1986. For a particular owner or operator of a Model 210 aircraft, the type design to which that  aircraft conformed when it was produced, is the type design to which it still must conform, absent: (1) an AD or other rule mandating a later change, or (2) a voluntary change in type design (either major or minor) initiated by an owner and approved by the FAA.4

At least two relevant operating rules require compliance with an ALS contained in a manufacturer’s maintenance manual or ICA. These are § 91.403(c), which prohibits the operation of an aircraft “for which a manufacturer’s maintenance manual or instructions for continued airworthiness [ICA] has been issued that contains an airworthiness limitations section [ALS] unless the mandatory replacement times, inspection intervals, and related procedures specified in [the ALS] … have been complied with;” and § 43.16, which requires that each person performing an inspection or other maintenance specified in an Airworthiness Limitations section [ALS] of a manufacturer’s maintenance manual or Instructions for Continued Airworthiness [ICA] shall perform the inspection or other maintenance in accordance with that section . …”

At issue here is Cessna’s recent addition of a new FAA-approved Section 2B (titled Airworthiness Limitations) to the Model210’s Service Manual. Because the FAA approved this change as an ALS, some would argue that the addition triggers the mandatory requirements of §§ 91.403(c) and 43.16. This argument is incorrect. The only version of an ALS that is mandatory is the version that was included in the particular aircraft’s type design that was approved by the FAA. As with the effectivity of a type design for a particular aircraft, absent an AD or other rule that would make the new replacement times and inspection intervals retroactive, Cessna’s after-added ALS is not mandatory for persons who operate or maintain the Model 210 aircraft, the design and production of which predate the new ALS addition. This is the case for all older model aircraft. For aircraft with type certificates that pre-date the requirements for an ALS, the manufacturer’s issuance of an ALS does not require operators or maintenance providers to comply with those limitations unless the FAA issues an AD or other rule to mandate it.5  Conversely, for an aircraft produced after adoption of an FAA-approved ALS revision, an operator may not operate that aircraft unless the mandatory replacement times, inspection intervals, and related procedures specified in the revision have been complied with. By the same reasoning, for those aircraft produced after the ALS revision, maintenance providers must perform inspections or other maintenance in accordance with that section.

You also asked whether, if this Cessna ALS is retroactively mandatory for the older model airplanes, the action would constitute substantive rulemaking by the FAA without the benefit of the notice and comment procedures required by the Administrative Procedure Act (APA). 6

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3 Under § 21.3l(c), an ALS is part of a product’s type design.

4 Once an aircraft is produced under a type certificate, the type design of that particular aircraft is fixed in time, absent an FAA requirement to make a retroactive change, or an owner’s voluntary change (if it is approved under a method acceptable to the FAA (§ 21.95 for a minor change in type design) or if it is FAA-approved through a major  change in type design(§ 21.97) or through a supplemental type certificate (SIC) (§ 21.113(b)).

5 The FAA’s requirements that Instructions for Continued Airworthiness (ICA) contain an ALS were adopted in 1980, and the Cessna Model 210 type certificate was first issued in 1959. Cessna produced the last Model 210 in 1986.

6 Along these lines, we note that on September 24, 2014, Mike Busch, the President of Savvy Aircraft Maintenance Management, Inc., published an article on the Aircraft Owners and Pilots Association (AOPA) Opinion Leaders Blog entitled “Backdoor Rule Making?,” in which he discussed the same after-added Cessna ALS matter, along with the related APA concerns. In that article, Mr. Busch notes that he co-drafted with you your September 15, 2014 request for interpretation that is the subject of this response.

(Page 3)

To the extent it could be argued that the FAA imposed a requirement for operators and maintainers to comply with this type of after-added  ALS by adopting §§ 91.403(c) and 43.16 through rulemaking, and that manufacturers’ documents simply define how the affected persons must comply, that interpretation must fail. It would violate both the statutory constraint on the FAA’s authority to delegate its rulemaking authority to private entities and the APA’s requirement for notice-and-comment procedures. If operational regulations were interpreted as imposing an obligation on operators and maintenance providers to comply with the latest revision of a manufacturer’s document, manufacturers could unilaterally impose regulatory burdens on operators of existing aircraft.

This would be legally objectionable in that the FAA does not have legal authority to delegate its rulemaking authority to manufacturers. Furthermore, “substantive rules” can be adopted only in accordance with the rulemaking section of the APA, 5 U.S.C. § 553, which does not grant rulemaking authority to manufacturers. To comply with these statutory obligations, the FAA would have to engage in its own rulemaking to mandate the manufacturer’s document, as we do when we issue ADs.

You also asked whether, even if these types of after-added ALSs are not mandatory retroactively for a person who owned the aircraft prior to the addition of the new ALS, if the current owner sells the aircraft would the new requirements be mandatory for the new owner. The answer is no, for the reasons explained above. The after-added ALS changes the type design only of aircraft produced under the changed type design. Aircraft manufacturers’ maintenance manuals and Instructions for Continued Airworthiness must be acceptable to the FAA, 7   and may be found acceptable if developed to maintain the aircraft in conformance with its type design. This necessarily means the specific type design for the aircraft at issue. Future changes, whether they be FAA-approved ALS or otherwise, cannot be retroactively enforced against owners/operators or maintenance providers of earlier model aircraft unless the FAA mandates their retroactive application by an AD or other properly adopted rule.

Finally, you sought clarification on whether the application of our reasoning in a previous interpretation, which concluded that a non FAA-approved inspection document issued by Cessna was not mandatory for owners or operators of existing aircraft, would be changed in view of the mandatory nature of the ALS requirement in § 91.403(c). The underlying premise of our reasoning would not change. That interpretation, issued on July 9, 2010 8, concluded that a Structural Inspection Document (SID) that added new inspection requirements to Cessna’s recommended inspection program for its Conquest model aircraft would not be mandatory for an owner or operator of that aircraft if the owner or operator had already adopted the program before Cessna added the SID. 9  The difference in reasoning between the Cessna Conquest SID situation and the Cessna Model 210 situation at issue (involving the after-added ALS) is that the later SID requirements would become mandatory for an owner or operator who adopted the

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7  Except for the ALS, which must be FAA-approved.

8 FAA legal interpretation letter to Larry Furnas, President, Aviation Advocates, LLC, from Rebecca L. MacPherson, Assistant Chief Counsel for Regulations, dated July 9, 2010.

9 As we pointed out, this may not be the case for aircraft operated under 14 C.F.R. parts 121 or 135. For purposes of inspections, the Cessna Conquest is a large airplane described in § 91.409(e); therefore, the owner or operator must select and use one of the four inspection programs listed in§ 91.409(!). The first offuese inspection programs requires a continuous airworthiness inspection program under parts 121 or 135, which could require adoption of later-issued inspection requirements, and the second program option requires an approved aircraft inspection program approved under§ 135.419, which also could require adoption of later-issued inspection requirements.

(Page 4)

manufacturer’s current recommended inspection program under § 91.409(±)(3) after the SID had been incorporated into the inspection program-because that would be current when adopted. Cessna Model 210 aircraft, however, unless operated under part 135 and therefore inspected under a part 135 inspection program, would be inspected in accordance with an annual or 100 hour inspection under § 9l.409(a) or (b), and the current maintenance or inspection manual or other methods, techniques, and practices acceptable to the Administrator would be applicable. To the extent the “current” maintenance manual contains the after-added ALS, using it would be acceptable, but not mandatory, as the previous revision without the new ALS would still be acceptable to the FAA-again, absent an AD or other rule that would make the new ALS retroactive and mandatory.

On February 19, 2015, the FAA’s Small Airplane Directorate sent a letter to Cessna that addressed some of the above issues, and pointed out the non-mandatory nature of the after-added ALS for the Model 210 aircraft. The FAA asked Cessna to republish the replacement times and inspections as recommendations that are encouraged, but optional, for those in-service aircraft, unless later mandated by an AD. To date Cessna has not provided a written response outlining its position on this matter.

This response was prepared by Edmund Averman and Benjamin Borelli, attorneys in the Regulations Division in the Office of the Chief Counsel, and coordinated with the Aircraft Maintenance Division (AFS-300) in the FAA’s Flight Standards Service, and with the Aircraft Engineering Division (AIR-100) in the FAA’s Aircraft Certification Service. If you have additional questions regarding this matter, please contact us at your convenience at (202) 267-3073.

Sincerely,

Lorelei Peter

Deputy Assistant Chief

Counsel for Regulations