Schultz-Seaport 2009

Page 1

U.S. Department of Transportation Federal Aviation Administration MAR 2 5 2009 Mr. David M . Schultz:

Director of Maintenance Seaport Airlines 7505 N.E. Airport Way Portland, Oregon 97218 Office of the Chief Counsel 800 Independence Ave., S.W.

Washington, D.C. 20591

Re: Reguest For Legal Opinion On Whether ICA (Instructions For

Continued Airworthiness) Inspections Are Required For Airplanes Operated Under 14 C.F.R. Part 135

Dear Mr. Schultz:

This is in response to your Jetter dated November 25, 2008, requesting a legal opinion on whether ICA (Instructions for Continued Airworthiness) inspections are required based upon a number of referenced regulations. You clarified the context of your inquiry in a telephone conversation on February 25 with Edmund Averman, an attorney on my staff, and Doug Anderson, an attorney in the Federal Aviation Administration's (FAA) Northwest Mountain Region. You explained that, as the Director of Maintenance for an air carrier operating aircraft under 14 C.F.R. part 135, your question pertains to the maintenance of those aircraft. Your letter listed a number of regulations (specifically, 14 C.F.R. part 23, app. G, paragraphs G 23.l(b) and G 23.4; 14 C.F.R. § 43.16; 14 C.F.R. § 91.403(c); and 14 C.F.R. §§ 135.41 l(a)(l) and 42l(b)) that you believed required the performance of inspections set forth in manufacturers' ICA. You also opined that such inspections would be required if they were referenced in an AAIP (approved aircraft inspection program). In a telephone conversation with Edmund A vennan on March 19, you clarified that your inquiry is meant to address small airplanes that are being maintained and inspected under the manufacturer's recommended program, but not under an inspection program required by 14 C.F.R. § 91.409(e) and (f). It is our opinion that the airplanes at issue must be inspected either in accordance with the manufacturer's ICA or in accordance with another program that is acceptable to the Administrator.

Those who have argued to you that ICA inspections are not mandatory may be basing their assumptions on the general rule that, at least for general aviation aircraft (i.e., non-air carrier ,..... aircraft for which additional rules apply), the inspections and other requirements set forth in a manufacturer's ICA, and revisions to them, are not mandatory, except as explained below. Notable exceptions to this general rule are inspections set forth in the Airworthiness Limitations section of a manufacturer's ICA that are part of the type design for the airplane

Page 2

(see 14 C.F.R. §§ 21.31 and 43.16) and manufacturer's ICA inspection requirements (including revisions to the Airworthiness Limitations Section) that are incorporated into an FAA-issued Airworthiness Directive (AD). Please refer to our December 5, 2008, memorandum to the Manager, Aircraft Maintenance Division, AFS-300 (copy enclosed), for insight as to why manufacturers' instructions and revisions to them are not mandatory, unless made so by the FAA through proper notice and comment rulemaking. Section 43.13(a) of the Federal Aviation Regulations, 14 C.F.R. § 43.l3(a), requires that each person performing maintenance shall use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in section 43.16. Notwithstanding other methods, techniques, and practices acceptable to the Administrator, section 4 3 .16 mandates that 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§ 9 J. 409(e).

As alluded to above, air carriers, through their operations specifications and numerous operating rules, must select and follow one of several alternate maintenance and inspection programs. For example, one of the regulations you referenced, 14 C.F.R. § 135.421(b), in conjunction with the predecessor paragraph (a), requires that, unless the certificate holder follows another program approved by the FAA, the manufacturer's recommended maintenance programs must be followed for the type of airplanes at issue. Paragraph (b) clarifies that the referenced maintenance program is one that is contained in the maintenance manual or maintenance instructions set forth by the manufacturer. This would include ICA. If a certificate holder selected the alternative of another program approved by the Administrator, that program should contain either the manufacturer's ICA inspections or a program of inspections at least equivalent to those recommended by the manufacturer.

Further, section 91.403(c) provides that no person may operate an aircraft unless the mandatory replacement times, inspection intervals, and related procedures specified in an airworthiness limitations section of an ICA or "alternative inspection intervals and related procedures set forth in an operations specification approved by the Administrator under part I 21 or 13 5 ... or in accordance with an inspection program approved under § 91.409(e) have been complied with."

Page 3

This response was prepared by Edmund Averman, an Attorney in the Regulations Division of the Office of the Chief Counsel and coordinated with the Aircraft Maintenance Division of the Office of Flight Standards. If you have additional questions regarding this matter, please contact us at your convenience at (202) 267-3073.

Sincerely,

~£!'.~ foV"' Rebecca B. MacPherson Assistant Chief Counsel for Regulations, AGC-200 Enclosure

Page 4

Subject:

From:

U.S. Department of Transportation Federal Aviat ion Administ ration Legal Interpretation of 14 C.F.R. § 91.409(£)(3) ~~::if~C-200 Memorandum

Date:

Reply to Attn. of:

DEC 5 2008

To: Manager, Aircraft Maintenance Division, AFS-300

This is in response to your August 25, 2008, request for a legal interpretation on the use of the phrase "current maintenance instructions." Your request, including the factual circumstances contained in associated background materials accompanying the request, is premised on 14 C.F.R. § 91.409(f){3), which uses the phrase "current inspection program." You framed the issue as: Whether, if a manufacturer amends its maintenance/inspection instructions, an affected aircraft operator is obliged to comply with the new instructions in order to be in compliance with § 91.409(f)(3). You stated that historically this has been interpreted to mean that, when a manufacturer updates its maintenance instructions, an operator is obliged to comply with these new instructions. It is our opinion that the operator is not so obliged. The legal conclusions below are equally pertinent to either type of document-current maintenance instructions or current inspection program. A 1998 memorandum from the then Assistant Chief Counsel for Regulations 1, addressed the meaning of "current" with respect to certain regulatory requirements. The memorandum noted that, "[a)ccording to Webster's II Dictionary the adjective 'current' means belonging to i:he present time." The memorandum distinguished between the use of the term in the context of making available to an aircraft owner a current Airplane Flight Manual (AFM) "at the time of delivery of the aircraft," (in which case the "current" obligation is fulfilled at the point in time of the aircraft delivery once and for all), and its use where there are no similar words of limitation and the nature of the obligation to be "current" is ongoing. In the memorandum's discussion, the context of the ongoing obligation was the obligation under 14 C.F.R. § 121.141(a) for an air carrier to keep a current AFM. The.air carrier's duty would be to incorporate subsequent amendments issued by the manufacturer into the AFM of an airplane it operated, thereby keeping the AFM current. This is essentially a paperwork requirement to keep the manuals up to date. That rule was adopted through notice and comment procedures required by the Administrative Procedure Act (APA) (5 U.S.C. § 553), and the obligation incumbent on the regulated entities (air carriers) was determined at the time of adoption and does not change over time, unless amended by another notice and comment rulemaking process.

I Memorandum from' the Assistant Chief Counsel for Regulations, AGC-200, dated October 8, 1998, on Legal Interpretation of Certain Provisions of Parts 21, 25, 91 and 121. · •• t

Page 5

The 1998 memorandum also broached the question whether, under. 14 C.F.R. § 91.9(a), an operator could be required to comply with a change to an operating limitation in an AFM if the chan·ge had not been made through the notice and comment procedures of the AP A. Section 91.9(a) requires, in pertinent part, that "no person may operate a civil aircraft without complying with the operating limitations specified in the approved Airplane or Rotorcraft Flight Manual ... ·." Because the specific question had not been asked, the memorandum reserved the issue for another day. 2 That day is now. Our answer is that an operator could not be so required, and our reasoning is the same as discussed below in answer to your questions concerning required compliance with "current" (i.e., subsequently issued changes to maintenance manuals or inspection programs). If such compliance were required, this would be tantamount to private entities issuing "rules" of general applicability without meeting the notice and comment requirements of the APA, and the public would not have had an opportunity to comment on these future limitations changes. The legal implications of the issue you raise are similar to those discussed above on futureissued limitations changes to an AFM. If"current" in§ 91.409(f)(3) and similarly worded regulations could be read to mean an ongoing obligation, manufacturers unilaterally could impose regulatory burdens on individuals through changes to their inspection programs or maintenance manuals. In essence, they would be making rules that members of the public affected by the change would have to follow. Under the AP A,· a rule is any agency statement "designed to implement, interpret, or presCribe law or policy ...." For purposes here, a rule is any statement that imposes legal requirements. In order for an agency to adopt a rule, it must comply with the APA, specifically, 5 U.S.C. § 553. That section requires notice and comment procedures for rules imposing requirements unless the agency makes a "good cause" finding that such procedures are "impractical, unnecessary, or contrary to the public interest" (for example, an emergency Airworthiness Directive (AD)). If the word "current" in § 91.409(f)(3) and other similarly worded provisions did mean an ongoing obligation~- when manufacturers make changes to their instructions and programs (which often accompany newly-produced models of products, but which also cover the previously-produced models), the new requirements could impose financial and other burdens on owners and operators of older aircraft that they did not bargain for. An interpretation of the regulation that would allow manufacturers unilaterally to issue changes to their recommended maintenance and inspection programs that would have future effect on owners of their products would not be legally correct··· This would run afoul of the APA. It would mean that our regulations effectively authorize manufacturers to issue "substantive rules," as thatterm·is used in the APA, i.e., it would enable them to impose legal requirements on the public. This would be objectionable for at least two reasons. First, and most significantly, the FAA does not have authority to delegate its rulemaking authority to manufacturers. Second, "substantive rules" can be adopted only in accordance with the notice-and-comment procedures of the AP A, which does not apply to manufacturers. Moreover, nothing in the regulatory history of§ 9 i :409(f)(3) indicates that the' agency intended future changes to inspection programs issued unilaterally by manufacturers to be binding on an ' ope~ator who had already adopted a· specific program that was current at the time of adoption. (See 36 FR 19507, October 7, 197_1, and 37 FR 14758, July 25, 1972.) Therefore, to comply with § 91.409(f)(3) an operator need only adopt a manufacturer's 2 See the memorandum's footnote 1.

. . ... -. ....... : ~ ....... ~·

Page 6

inspection program that is "current" as of the time he adopts it, and that program remains "current" unless the FAA mandates revisions to it. Such a mandate would be adopted in the form of either an AD or an amendment to the operating rules. Although manufacturers ' program revisions do not require operators to revise their fuspection programs, operators may incorporate these revisions, and typically do so. This is an acceptable practice, and it fully complies with§ 91.409(f)(3).

We agree with AFS-300 that a rulemaking change to clarify the meaning of§ 91.409(f)(3) and similarly-worded regulations to remove the ambiguity associated with the term "current" would be beneficial. AGC-200 staff will work with your staff in developing clarifying rule text and associated preamble language.

This response was prepared by Edmund Averman, an Attorney in the Regulations Division of the Office of the Chief Counsel. If you have additional questions regarding this matter, please contact us at your convenience at (202) 267-3073.

Rebecca B. MacPherson