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Backdoor Rule Making?

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”:

Cessna 210 Service Manual Section 2B

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:

Cessna 210 inspection times

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.Cessna 210 service manual 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.

Mike Busch is arguably the best-known A&P/IA in general aviation, honored by the FAA in 2008 as National Aviation Maintenance Technician of the Year. Mike is a 8,000-hour pilot and CFI, an aircraft owner for 50 years, a prolific aviation author, co-founder of AVweb, and presently heads a team of world-class GA maintenance experts at Savvy Aviation. Mike writes a monthly Savvy Maintenance column in AOPA PILOT magazine, and his book Manifesto: A Revolutionary Approach to General Aviation Maintenance is available from Amazon.com in paperback and Kindle versions (112 pages). His second book titled Mike Busch on Engines was released on May 15, 2018, and is available from Amazon.com in paperback and Kindle versions. (508 pages).

47 Comments

  1. The only thing surprising to me about this is that Cessna or other OEMs didn’t try this a long time ago. I’m sure the liability costs on older aircraft far outweigh any financial benefit they might realize by continuing to support them.

    Thanks for fighting the good fight on this!

  2. I smell lawyer

  3. Thanks Mike, for this action. Cessna, and other large corporations, are always, as you know, trying to mitigate their liabilities, as well as trying to improve their market take, on any products. As mentioned by Ron Rapp, below, it’s just surprising they have taken this long to try an “end run” around laws already in place. I personally see this as just another way for them to try and get rid of “older” airplanes in the GA fleet.

    • Cessna’s liability is already limited by GARA. All these airplanes are more than 18 years old.

      • I still think there is a corporate (unwritten) plan in play. Owners are going to see this, and decide it’s time to get rid of that “older” plane and maybe, just maybe, invest in a newer, more modern, (with fewer AD’s and manufacturers bulletins,) plane. Especially as they are losing ground on piston aircraft sales in this country. They used to have a large following, and reputation, for the two lowest priced birds, the C-150/152 and C-172. Now, that market has dried up, as people are buying cheaper pistons, (LSA’s,) from Europe, and Asia is trying to get into that market, so Cessna seems to have the idea maybe it’s time to get totally away from the high wing, lower performance, piston planes, and at the same time, limit any carryover liability these U.S. courts try and impose, regardless of GARA.

        • I’m sure Cessna wants to minimize its liability tail on its legacy aircraft, particularly models like the 210 that are not in production and never will enter production again.

          (The CEO of Cessna told me unequivocally that the 210 would never re-enter production. Cessna paid out more money in judgments on the 210 than all of its other models combined, including Caravans and Citations.)

          I don’t blame Cessna for wanting to limit its liability. I only blame them (and the FAA) for trying to bypass the proper protocol (i.e., requesting an AD).

          • At Reno-Stead, an instructor heard about a 210 with a bird strike down the ramp waiting to go into the shop, so we drove down there, and he explained that one of the 210’s local nicknames was “doctor-killer”, because it often experienced incidents after being purchased by doctors (a pay grade thing) of relatively low aviator experience. Cessna’s pay-outs; that’s a lawyer thing, and a doctor thing.

    • Hadn’t seen this one when I wrote my other diatribe. Too much Part 135 in my blood, I guess …. comply with everything ever written, and you’re still probably illegal to fly.

      • I have no problem with the ALS as long as it isn’t mandatory. I don’t question Cessna’s right to amend its maintenance manual. When I question is whether those amendments have any regulatory effect on aircraft owners. That’s the question we asked AGC-200 to resolve.

    • The difference is that in this case Cessna added an ALS that is FAA-approved. I’m not aware that AGC-200 has ever ruled on the retroactive enforceability of a new or amended ALS. Based on the LOI you cited and a number if others, I feel confident that AGC-200 will agree that the ALS is not retroactively enforceable against current 210 owners, but Paul and I felt that the question needed to be asked and answered in order to have weight with IAs and Chief Inspectors signing off annual inspections on Cessna 210s.

      A more difficult question is what happens when a 210 is sold. Will the new owner be required to comply with the ALS? We asked AGC-200 to answer that question, too.

  4. Mike, you have the key point in your last statement “ALS cannot be retroactively enforceable against aircraft owners unless the FAA issues an AD making it so.” So unless the owner/operator adopts the new manual, they can use the one delivered with the aircraft, or latest one mandated by the FAA (AD process).

    • It’s not enough for me to say it. The FAA lawyers have to say it.

      And the issue of what happens when a Cessna 210 is sold is more difficult. Will the new owner be bound by the ALS that was current when he acquired the airplane? I can’t predict how AGC-200 will rule on that one.

      • Mike, I fully agree with you on this one. The FSDO’s all make there own definitions, even individual ASI’s, so specific definition from national is required. There should be no reason that AD’s could not address the issues with aging aircraft. Manufacturer’s service letters/bulletins are often good ideas but should not be regulatory unless cited by specific AD.

      • Roberto Santamaria

        September 28, 2014 at 4:45 am

        I understand your point and thank you for your efforts to make this matter clear to everyone and have AGC-200 produce a LOI saying so.

  5. thanks to Roberto this sounds like it is for future production only per the referenced letter.

    I would add that this interpretation makes sense since current owners of older models are not allowed by default to “upgrade” their existing airplane to that of the current production without additional approval.
    One additional point from the rumor mill, I have heard of this effort before and it is not the OEMs that are pushing for it. FAA is requiring all OEMs to update manuals to Part 23 standards and those include an ICA/Limitations section. This is an FAA action by virtue of the FAA approval necessary for OEM issue of the maintenance manual and the FAA will not sign off without it.

    • I’ve been hearing exactly the same thing. I anticipate ALSs will be added to many more maintenance manuals for legacy CAR 3 aircraft going forward. That’s why it’s so important to get clarification on whether they are enforceable against aircraft owners.

  6. Cessna: We just added a new rule; incidentally, it has the full force of law, but we didn’t bother the FAA with it because of the FAA’s ever-present backlog.

    Not Cessna: You can’t do that.

    Cessna: Sure we can.

    Not Cessna: How ya’figure?

    Cessna: It says so in the new rule.

    ————-

    This is a wonderful example of a paradox.

  7. Given the FAA’s long history of developing ADs pursuant to the Administrative Procedures Act’s informal rulemaking process and the financial burden that new airworthiness requirements can and do Impose on owners and operators, it seems an argument can be made that, if it concludes that Cessna’s action is enforceable, the process Cessna and FAA used constitutes an improper delegation of regulatory authority to the manufacturer. It seems likely to me that a reviewing court would conclude that FAA cannot authorize the manufacturer to do something that FAA cannot do itself: create burdens that affect the public without adequate demonstration of need, cost-benefit analysis, and compliance with the APA and other statutes and Executive Orders that define the Federal Rulemaking process.

  8. Cessna Published this maintenance manual amendment more than 10 years ago for all 100 and 200 series aircraft to address aging aircraft issues at the time, and granted 10 years of relief. These aging aircraft amendments and ALS began taking effect in June of 2014.

    The legal interpretation Santamaria references does put to rest the “legal” compliance issues as to the definition of current

    http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/data/interps/2008/manager-afs-300%20-%20(2008)%20legal%20interpretation.pdf

    As a 30 year A+P/I.A I appreciate Mike bringing up this issue.

    Unless regulated by Operations Specifications for commercial operations or an AD:

    Annual Inspections, can be legally performed 3 different ways with three different types of legal and often conflicting approved data.

    1). IAW the Manufacturers Maintenance Manual, “as amended”.

    2). IAW the Manufacturers Maintenance Manual, “as certificated”, or more specifically as delivered to the original owner, based on the definition of current.

    3). IAW 43.13 Appendix D.

    I hope Mike can carry this torch further as all the discrepancies found during said inspection above are not required by regulation to be repaired IAW a single source of approved data.

    An aircraft be inspected with a cafeteria style approach to the inspection data above AND

    the same aircraft can be repaired IAW the same cafeteria style approach to the repair data i.e.

    1). IAW the Manufacturers Maintenance Manual, “as amended”.

    2). IAW the Manufacturers Maintenance Manual, “as certificated”, or more specifically as delivered to the original owner, based on the definition of current.

    3). IAW 43.13 Appendix D.

    As the three sources of data are often conflicting owners that change maintenance shops, planes that change owners, owners that lament amongst each other about the cost of inspections and maintenance, and maintenance shops trying to keep a customer base are met with a multitude of seldom understood but approved variables to inspections and maintenance.

    I am glad this 210 MM revision is helping to bring this issue to light.

    • I agree 100%, Chena, but I fear that very few IAs and even fewer aircraft owners understand this. I feel it’s important for FAA legal to go on record about this. They have previously ruled on the meaning of the word “current” in 91.409 and 43.13, but so far as I am aware they’re never ruled on the subject of ALS compliance in the context of 91.403(c) and 43.16. I think we’re pretty sure how they will rule, but I thought it was important to force the issue so that owners and IAs would be crystal clear on this matter.

  9. Some or most of the effected owners, mechanics and CRS’s may not be aware, but the insurance companies who right those owner policies sure do. When The OEM’s come out with mandatory: ALS, ICA’s SB’s and other documents and the Insured doesn’t comply with, look out. Who is liable for the loss, regardless of pilot error, weather, act of God or what ever is blamed for the loss. The OEM is assumed to have the deepest pockets. I worked for Cessna for 14+ years and you will find my name on the CofA (standard and restricted) on nearly 6000 aircraft along with AFM’s for those required to have them. The OEM’s have to monitor their exposure to the court system. Plaintiff’s attorneys always use the emotional guise to win again the defendant, regardless of the facts.
    Personally, I am a 43 year A&P, retired FAA, pilot owner, and DAR. I am no expert but I know what I have seen the industry go through for decades. It is not fair to the manufacturer to bare the burden for aging aircraft and faulty or neglected maintenance.

    • That is totally false, aveteran. I’ve discussed this at length with several chief underwriting officers at major insurers of owner-flown GA airplanes. Without exception, every underwriter says that if the aircraft is airworthy in the eyes of the FAA, then its airworthy in the eyes of the underwriter. No underwriter establishes its own airworthiness standards that depart from the FAA’s standards. For example, the FAA permits Part 91 operators to ignore engine and propeller TBOs. Every underwriter in the US who insures piston aircraft will readily insure aircraft with past-TBO engines, and will unequivocally cover losses for such aircraft if they crash due to an engine failure. I can tell you this as an absolutely certainty, because I have researched it thoroughly with the underwriters themselves.

      • Well Mike, you maybe correct in part. I failed to tag the message as covering only part 135 or only part 91. But, the insurance companies have on their pay rolls A&P’s to be used to investigate numerous claims to see if mitigation of costs is available to them. Like stated before you slam back toward me. I am not the expert I only go by what I have seen in the field.

  10. aveteran2 thank you!
    Metal fatigues from the day it is made.
    It must be maintained and inspected to higher standards as it nears the exponential fatigue curve lest it let you down.

    Laws of physics apply to lawyers too.

    • Correction: It SHOUD be maintained and inspected to a higher standard. It only MUST be if there’s an AD that says so. 😉

      I agree that the laws of physics are everywhere the same, even in the southern hemisphere. But the governmental laws are very different. The laws of physics dictate what we should do, the government dictates what we must do.

  11. Not sure what all the complaining is about. I’d rather have the inconvenience of an eddy inspection than the inconvenience of losing a wing. If we are going to fly airplanes that are decades old than we had better accept that some increased maintenance is inevitable. Ron (A&P, ATP, CFI)

    • Nobody disagrees with that, Ror. The issue is not what Cessna prescribed, it’s the way they went about it. If they believe the inspections are necessary to prevent losing a wing, then they should have asked the FAA for an AD. Had they done so, you’d hear no complaints from me.

    • Understood. However, Cessna has recently published some stunningly comprehensive SB’s and “requirements” for aging aircraft. A simple move to produce a “CH-4” for those older aircraft, followed by incorporation into CH-4, of these SB’s would be all that is necessary to ground the entire fleet of airworthy aircraft.

      Also, using accurate statistical data, the age of a well maintained aircraft is so rarely a factor in fatal crashes, it’s in essence, barking up the wrong tree. Let’s address GA safety by addressing the “real” issues. Starting with the issues that cause the most fatalities, and working down the list. Once we get to age related structural failure, we are on item 963.

  12. Did you ever once think that Cessna is looking out for the SAFETY of the people that fly this model? Mr. Busch, I’ve got you figured out. You think that maintenance and inspections equal money down the drain, and never once do you equate maintenance and inspections with people’s safety. You are not a trained Arronautical Engineer and frankly IMHO as an A&P/IA/ATP for 30 years, your opinions are not in the best interest of Aviation as a whole. Granted, you do have some valid points in some of your articles, but for the most part, you have “the cheap gene” and never ever look at the fact that these maintenance and inspection procedures are designed by trained Aeronatical Engineers, and are put forth to ensure people’s safety. Your article berates the method in which Cessna has issued this ICA, but never is safety mentioned in your article or any of your followers comments.

    • Steve, you are entitled to my opinion. And if you read what I wrote carefully, you would note that I never suggested that aircraft owners shouldn’t comply with the inspections or life limits. I specifically stated that the inspections were not onerous. Had Cessna asked the FAA to issue an AD mandating the inspections, I would not have opposed the issuance of the AD.

      My blog post was very specific that my objection was not to the inspections but to the method that Cessna and the FAA (who presumably approved the new ALS) were attempting to circumvent the federally-mandated rule making process. If this is allowed to stand, what’s to prevent Lycoming from adding an ALS to their O-320 maintenance manual mandating compression tests every 25 hours?

      I believe there’s an important principle here that needs to be defended: Manufacturers do not have the right to impose burdens on aircraft owners, only the FAA has the right to do that. And the FAA may only impose burdens on aircraft owners by following the notice-and-comment protocol prescribed by the APA, giving impacted owners the opportunity to participate in the rule making process.

      Read my blog post again, Steve. Clearly you missed the point on your first pass.

      • Mike, it’s my understanding that the FAA cannot issue an AD unless the manufacturer issues a SB that the FAA then deem serious enough to make it mandatory?

        Why does Cessna need the FAA’s approval to include some extra maintenance on an ancient piece of metal?

        Maybe it’s because I’m upside down!

        • First, it’s not true that the FAA can’t issue an AD unless the manufacturer issues a SB. Sometimes that happens and the AD incorporates the SB by reference. Other times, the AD is self-contained and does not reference any manufacturer technical publications. One example is AD 2000-01-16, the big AD on twin Cessna exhaust systems that I helped to write. That AD is very complex and does not reference any Cessna SBs.

          Second, Cessna does not need the FAA’s approval to amend their maintenance manuals. But they cannot add an ALS without FAA approval. The ALS is very special from a regulatory point of view, and unlike other maintenance manual sections, the ALS must be FAA-approved. The reason it must be FAA-approved is because compliance with the ALS is mandatory (per 91.403(c) and 43.16), and no manufacturer has the right to make anything mandatory, only the FAA can do that.

          It’s very different in the southern hemisphere. You lack the federal protections that we enjoy in the US. We need to fight to keep those protections.

          • Mike

            As you have some followers downunder, they do not understand the FAA rules system that you refer to. In future articles, can you please clarify that your recommendations concerning any rules are for N registered aircraft operating under the FAA rules only?
            Cheers

      • Mike said: “Manufacturers do not have the right to impose burdens on aircraft owners, only the FAA has the right to do that”

        I disagree. Only Congress has the right to impose burdens on us. And then, only after a majority vote in both the House and Senate, followed by a presidential signature. The FAA has run amok.

        • Well technically you are correct, Cujet. But Congress passed the Federal Aviation Act of 1958 and President Eisenhower signed it. That created the FAA and empowered it to regulate aviation.

    • I believe what Mike is pointing out is the potential for future abuse. If Cessna can decide that this inspection is necessary, they why not anything? Using this method, they can impose new maintenance requirements for anything regardless of actual need. If what they require benefits Cessna, well that would just be coincidence, right? If you say “anything for safety” that is the same as saying “everything for safety”.

    • Boy what was the brand of Kool-Aid you drank? Do you really think that the maintenance and inspection procedures are designed by trained Aeronautical Engineers, and are put forth to ensure people’s safety? Go to a GAMI class and have the instructors show you the numerous contradictions in POH’s and Mainenance manuals

  13. Hi from NZ. We have a completely different set of rules here and Cessna SID are mandatory for 100 and 200 series aircraft, no discussion. So consider yourselves lucky!!

    Whats the average age of the Cessna fleet world wide? 30-40 years would be my guess. How many owners have 30-40 year old cars that drive along the ground? Nah me neither. So why do you fly old aircraft 1000’s of feet above the earth at 150-300 MPH through all kinds of temperature change, turbulence, airframe stress and strains, metal fatigue and yet still think that they do not need any extra maintenance?

    Does anyone know what the actual design life of a Cessna built in the 70’s is? Try 17 years according to Mr Cessna! These machines have to be treated like classic cars and maintained accordingly.

    • We are indeed lucky in the US. There has been a significant flow of these legacy Cessnas (especially twins) from ANZ back to the US because SID compliance is so costly and is not required by the FAA but is by many other CAAs worldwide.

  14. The manufactures have enjoyed a reprieve under the General Aviation liability act that was passed by congress in the 80’s which limited their liabilities on older aircraft. That being stated the 15 year limitation was instituted to help lower the liabilities to the manufactures and help them to lower cost of liability insurance. This was suppose to lower the prices of aircraft. But it never materialized as other cost escalated and aircraft prices actually rose over the next decade. Yes they could still be sued.

    I believe if this precedence takes place then let the manufactures absorb all the liabilities again. They clearly don’t want to help the customer. The new proposed rule to streamline the certification is again to help the manufacture and eventually the customer.. I bet we won’t see tangible relief with any rule changes which will lower our cost of aircraft, parts, or equipment.

    This is another case of protect our rear end!
    Jack Hunt

  15. Thank You Mike for working this issue. I especially appreciate your measured tone in the replys to people who don’t show such restraint. I very much concurr with the point you are making. The existing methods are there for a reason. There’s enough chaos in the world as it is. We don’t need any more in aviation. If Cessna believes what they propose is needed, let them do so in the usual manner and work the problem in the open.

    • It is not clear to me that Cessna could convince the FAA to issue an AD mandating the eddy current inspection.

      I believe there have been zero instances of wing spar lower cap cracks in the US. I believe there have been two in Australia, but the aircraft involved previously had spar repairs, so the spars weren’t in the same condition as when Cessna manufactured them. I also believe there has been one in Canada, and I don’t know the details of that one.

      As you can see, there is serious question as to whether “an unsafe condition” actually exists, which is a prerequisite for issuing an AD. And if the FAA issued an NPRM for such an AD, they would have to document the details of the specific incidents that support their contention that an unsafe condition exists.

  16. Mike, I’m confused. How is Cessna supposed to comply with 14 CFR 23.1529 under your AD approach ? Appendix G23.4 is pretty clear. “Airworthiness Limitations section. The Instructions for Continued Airworthiness must contain a section titled Airworthiness Limitations that is segregated and clearly distinguishable from the rest of the document. This section must set forth each mandatory replacement time, structural inspection interval, and related structural inspection procedure required for type certification.”
    If Cessna wants to keep its production and type certificates, I think they have to play by the rules too. Doesn’t seem like the ” insidious” conspiracy that you imply. Your approach seems to fit with “we need a few Americans flying 210’s to have their wings fall off” before all of this is justified.

    • Todd, you’re missing the point. There’s absolutely nothing wrong with Cessna adding an Airworthiness Limitations Section to its maintenance manuals (or ICAs if they have them). What’s wrong is for Cessna to suggest that those Airworthiness Limitations are retroactively enforceable (i.e., required by regulation) for aircraft manufactured prior to the publication date of the ALS. Cessna is wrong about that, and we cannot let their misrepresentation stand.

      What makes this particularly ridiculous is that the Cessna 210 is an aircraft that Cessna will never produce again under any circumstances, so the ALS that they issued is completely null and void since it will never be enforceable against any aircraft. I was given assurance by a past president of Cessna Aircraft Company that the 210 will never again go into production. This is for the simple reason that the Cessna 210 resulted in greater product liability losses to Cessna than all other aircraft they produced combined (including Citations and Caravans). Cessna would be absolutely gleeful if every Cessna 210 in the fleet was placed into a large pile and then run over by bulldozers. Although Cessna enjoys GARA protection from further liability in connection with these aircraft, they have still issued SIDs and now an ALS, neither of which are enforceable under FAA rules (although their impact is absolutely devastating in other countries like Australia and New Zealand that don’t enjoy the APA protections that we do here in the US).

      During a webinar on the subject of the Cessna 210 wing spar eddy current inspections two weeks ago, in response to a question that I asked, Cessna’s head of propeller product support Tom Ronnau admitted that Cessna asked the FAA for an AD mandating the eddy current inspections, and the FAA declined to pursue one (presumably because the FAA didn’t feel that Cessna made the case that an unsafe condition exists and/or that the cost of compliance was justified by the safety risk). This suggest to me that Cessna knew perfectly well that their inspections would not be mandatory in the absence of an AD making them so.

      Once again, I do not have a problem with the inspections themselves. They are not overly burdensome, and if I owned a high-time Cessna 210 I would probably do them voluntarily. What I object to strongly is Cessna’s attempt to try to make the inspections compulsory without benefit of the AD process, and that is something we will not let happen without a fight.

  17. When the Administrative Procedures Act (APA) was enacted it was intended to be “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated” by federal government agencies (the words of Senator Pat MacCarran). Unfortunately, this body of law, if it can be called a “body”, has an administrative cost to taxpayers of over 1 trillion per year, and the body has been assumed by big business, lobbyists, and politicians! The common American, whose affairs are controlled or regulated by federal government agencies, has no understanding of how to use Administrative Laws. And even if they did, they don’t have the money to fight big business, lobbyists, and politicians!

    An AD is part of the Agency Process for rule making as it is required by the APA to be prescribed by the FAA. From the Foreword of FAA-IR-M-8040.1C, Airworthiness Directives Manual (May 17, 2010): “Airworthiness Directives (ADs) are substantive regulations issued by the Federal Aviation Administration (FAA) in accordance with Title 14 of the Code of Federal Regulations (14 CFR) part 39.”

    Pleas focus on the words “substantive regulation”. The word “regulation” also means “substantive rule”. Courts employ a functional analysis to determine if a rule is substantive. Substantive rules embody value judgments or substantially alter the rights or interests of parties.

    See Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369. ” …we hold that the Penalty Rules (Fines) are invalid and that the FAA may not initiate new prosecutions until it has complied with the procedural requirements of the APA.” Read more here if you enjoy the legal verboseness of the supremacy which fouls the common American: http://openjurist.org/900/f2d/369 Para 2 has what your looking for.
    I hope this helps. I love a challenge, and now I know more about my rights v. the FAA. Dear fellow Airmen please remember this: “A substantive rule has the force of Law. An interpretive rule, by itself, is like one persons opinion, it’s just an interpretation.”

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