On February 10, 2014, the Cessna Aircraft Company did something quite unprecedented in the history of piston GA: It published a revision to the service manual for cantilever-wing Cessna 210-series airplanes that added three new pages to the manual. Those three pages constituted a new section 2B to the manual, titled “Airworthiness Limitations”:
This section purports to impose “mandatory replacement times and inspection intervals for components and aircraft structures.” It states that the new section is “FAA-Approved” and that compliance is required by regulation.
Indeed, FARs 91.403(c) and 43.16 both state that if a manufacturer’s maintenance manual contains an Airworthiness Limitations section (ALS), any inspection intervals and replacement times prescribed in that ALS are compulsory. FAR 91.403(c) speaks to aircraft owners:
§91.403(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 … have been complied with.
and FAR 43.16 speaks to mechanics:
§43.16 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…
Sounds pretty unequivocal, doesn’t it? If the maintenance manual contains an ALS, any mandatory inspection intervals and replacement times have the force of law.
The new ALS in the Cessna 210 maintenance manual mandates eddy current inspection of the wing main spar lower caps. For most 210s, an initial spar inspection is required at 8,000 hours time-in-service, with recurring inspections required every 2,000 hours thereafter. However, for 210s operated in a “severe environment” the inspections are required at 3,500 hours and every 500 hours thereafter:
For P210s, the new ALS also imposes a life limit of 13,000 hours on the windshield, side and rear windows, and ice light lens.
What’s wrong with this picture?
To be fair, the eddy current inspection is not that big a deal. An experienced technician can do it in a few hours. The most difficult part is that most service centers have neither the eddy current test eequipment nor a trained and certificated non-destructive testing (NDT) technician on staff. So most Cessna 210 owners will need to fly their airplane to a specialty shop Since most airplanes will need to do this only once every 2,000 hours and since most of them fly less than 200 hours per year, one could hardly classify this recurrent eddy current inspection as Draconian. Similarly, not too many P210s are likely to reach the 13,000-hour life window life limit.
No, the issue isn’t the spar cap inspection or window life limits themselves—it’s the extraordinary method by which Cessna is attempting to make them compulsory.
Normally, if the manufacturer of an aircraft, engine or propeller wants to impose a mandatory inspection interval or a mandatory replacement or overhaul time on the owners of its aeronautical product, the manufacturer goes to the FAA and requests that an Airworthiness Directive (AD) be issued. If the FAA agrees and decides to issue an AD, it does so by means of a formal rule-making process prescribed by the federal Administrative Procedure Act (APA). Ultimately, the AD is published in the Federal Register and becomes an amendment to Part 39 of thee FARs. That’s what gives the AD its “teeth” and makes it compulsory for aircraft owners to comply with it.
§91.403(a) The owner or operator of an aircraft is primarily responsible for maintaining that aircraft in an airworthy condition, including compliance with part 39 of this chapter.
The APA governs the way that administrative agencies of the federal government (including the FAA) may propose and establish regulations. It has been called “a bill of rights” for Americans whose affairs are controlled or regulated by federal government agencies. The APA requires that before a federal agency can establish a new regulation, it must publish a notice of proposed rule making (NPRM) in the Federal Register, provide members of the public who would be impacted by the proposed regulation an opportunity to submit comments, and then take those comments seriously in making its final rule. The APA also establishes rights of appeal if a person affected by the regulation feels it is unjust or should be waived.
Because of the APA and other federal statutes, it is difficult for the FAA to issue ADs arbitrarily or capriciously. The agency first has to demonstrate that a bona fide unsafe condition exists, and that its frequency and severity of the safety risk rises to the level that makes rule making appropriate. It has to estimate the financial impact on affected owners. It has to provide a public comment period, give serious consideration to comments submitted, and respond to those comments formally when issuing its final rule.
As someone who has been heavily involved in numerous AD actions on behalf of various alphabet groups, I can tell you that the notice-and-comment provisions of the APA is extremely important, and that concerted efforts by aircraft owners and their representative industry organizations have often had great impact on the final outcome.
Through the back door?
That’s what makes Cessna’s action last February so insidious.
The addition of an Airworthiness Limitations section to the Cessna 210 maintenance manual was done without going through the rule making process. There was no NPRM and no comment period. Affected owners never had an opportunity to challenge the need for eddy current inspections of their wing spars. Cessna was never required to demonstrate that a genuine unsafe condition exists, nor weigh the cost impact against the safety benefit. By adding an ALS to the maintenance manual rather than ask the FAA to issue an AD, Cessna is attempting to bypass the APA-governed AD process and impose its will on aircraft owners through the back door.
Granted that the initial contents of the new ALS is not excessively burdensome. But if Cessna’s action is allowed to go unchallenged, it could set a terrible precedent. It would mean that any aircraft, engine or propeller manufacturer could retroactively impose its will on aircraft owners.
And if that happens, Katy bar the (back) door!
That’s why I’ve been working with my colleague Paul New—owner of Tennessee Aircraft Services, Inc. and honored by the FAA in 2007 as National Aviation Maintenance Technician of the Year—to challenge what Cessna is doing. On September 15th, Paul sent a letter that we jointly drafted to Mark W. Bury (AGC-200), the FAA’s top regulations lawyer in its Office of General Counsel at FAA headquarters, asking him to issue a formal letter of interpretation as to whether compliance with the so-called mandatory inspection intervals set forth in section 2B of the Cessna 210 maintenance manual is actually required by regulation. We specifically ask Mr. Bury to rule on the question of whether retroactive enforcement of such a maintenance manual amendment by the FAA would constitute an APA violation.
The wheels of justice turn slowly at FAA Headquarters. We have been advised that AGC-200 has a four-month backlog of requests for letters of interpretation, so our request probably will not be looked at until the first quarter of 2015. But at least our request is in the queue. I am cautiously optimistic that AGC-200 will see things the way Paul and I see them, and will rule that a manufacturer’s publication of an ALS cannot be retroactively enforceable against aircraft owners unless the FAA issues an AD making it so.