In my AOPA Opinion Leaders Blog post of September 2014 (“Backdoor Rulemaking?”), I discussed the unprecedented action taken by the Cessna Aircraft Company intended to compel the owners of cantilever-wing Cessna 210s to perform repetitive eddy-current inspections of their wing spars. Finally, I can fill you in on the punch line.
By way of background: Normally, if an aircraft manufacturer believes that an unsafe condition exists that justifies imposing special inspections, component life limits, replacement or overhaul times, or similar burdens on aircraft owners, they go to the FAA and ask for an Airworthiness Directive (AD) to be issued. If the FAA is persuaded that the alleged unsafe condition actually constitutes a significant safety concern and that the burden on owners is reasonable given the safety risk, then the FAA issues a Notice of Proposed Rulemkaing (NPRM) announcing its intention to issue an AD and soliciting comments on the proposal from the affected public. The FAA is then required to consider and respond to all public comments submitted during the comment period before issuing its final rule that makes the AD effective. This same notice-and-comment protocol is required of all executive-branch regulatory agencies of the U.S. federal government by a law called the Administrative Procedure Act (APA).
Indeed, that’s precisely what Cessna did in 2013: It asked the FAA’s Wichita Aircraft Certification Office (ACO) to issue an AD mandating repetitive eddy-current inspections on all cantilever-wing Cessna 210s. But to Cessna’s chagrin, the Wichita ACO turned down Cessna’s request and declined to proceed with an AD, presumably because the ACO was not persuaded that such an AD was justified.
That should have been the end of the matter. But it wasn’t.
In February 2014, Cessna very quietly published a revision to the Cessna 210 service manual that added three new pages to the manual. Those three pages constituted a new section 2B to the manual, titled “Airworthiness Limitations,” that called for the repetitive eddy-current spar inspections. Somehow Cessna persuaded the Wichita ACO to approve this amendment—something the ACO really shouldn’t have done, as you shall see.
Cessna then publicly took the position that compliance with the repetitive eddy-current spar inspections was compulsory because those inspections were now part of an FAA-approved Airworthiness Limitations Section (ALS). Indeed, FAR 91.403(c) compels aircraft owners to comply with mandatory replacement times, inspection intervals, and related procedures specified in an ALS. And FAR 43.16 compels maintenance personnel to perform any inspections or maintenance specified in an ALS precisely “by the book.”
David vs. Goliath?
I first learned about this at the beginning of September 2014, when my colleague Paul New—owner of Tennessee Aircraft Services, Inc. (a well-known Cessna Piston Aircraft Service Center) and honored by the FAA in 2007 as National Aviation Maintenance Technician of the Year—discovered the new section 2B in the Cessna 210 service manual, and immediately realized its significance. Paul and I discussed the matter at length, and both felt strongly that Cessna’s actions could not be allowed to go unchallenged.
“If Cessna gets away with this,” I told Paul, “then any manufacturer will be able to effectively impose their own ADs whenever they want, bypassing the notice-and-comment protocol and the other safeguards built into the APA to protect the public from unreasonable government regulation.”
I helped Paul draft a letter to the Rulemaking Division (AGC-200) of the FAA’s Office of General Counsel, questioning the retroactive enforceability of Cessna’s newly minted ALS against Cessna 210s that were manufactured prior to the date the ALS was published (i.e., all of them, given that Cessna 210 production ceased in 1986). Our letter questioned whether Cessna could do what it was trying to do (i.e., make the eddy-current inspections compulsory) within the confines of the APA. We asked AGC-200 to issue a formal Letter of Interpretation (LOI) of the thorny regulatory issues that Cessna’s unprecedented actions raised.
And then we waited. And waited.
AGC-200 initially advised us that they had a four-month backlog of prior requests before they would be able to respond to our request. In fact, it took seven months. It turns out that our letter questioning the enforceability of Cessna’s ALS opened a messy can of worms. AGC-200 assigned two attorneys to draft the FAA’s response, and they wound up having to coordinate with AFS-300 (Flight Standards Maintenance Division), AIR-100 (Aircraft Certification Division), ACE-100 (Small Airplane Directorate), and of course ACE-115W (Wichita Aircraft Certification Office) who mistakenly approved Cessna’s ALS in the first place.
FAA Legal Does the Right Thing
Finally, on May 21, 2015, AGC-200 issued the Letter of Interpretation (LOI) that we requested. It was five pages long, and was everything we hoped it would be and more. It slammed shut the “rulemaking backdoor” that Cessna had been attempting to use to bypass the AD process, locked it once and for all, threw away the key, and squirted epoxy glue in the lock for good measure. You can read the entire LOI in all its lawyerly glory, but here’s the CliffsNotes version of the letter’s key bullet points:
- Under FAR 21.31(c), an ALS is part of an aircraft’s type design.
- The only version of an ALS that is mandatory is the version that was included in the particular aircraft’s type design at the time it was manufactured.
- Absent an AD or other FAA 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. The “requirements” set forth in the ALS would only be mandatory for aircraft manufactured after the ALS was issued. And of course, production of the Cessna 210 ceased in 1986.
- 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 it does when it issues ADs.
The bottom line is this: Manufacturers of certificated aircraft* are not permitted to impose regulatory burdens on aircraft owners by changing the rules in the middle of the game. Only the FAA may do that, and only through proper rulemaking action that complies with the APA (including its notice-and-comment provisions and other safeguards). If you ever encounter a situation where the manufacturer of your aircraft tries to do this, call their cards—the FAA lawyers will back you up.
*NOTE: The rules are completely different for S-LSAs. The manufacturers of S-LSAs can do pretty much anything they like, and their word is the law. (A seriously flawed situation IMHO.)
The LOI concluded with the following surprising paragraph:
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 [three months later –mb] Cessna has not provided a written response outlining its position on this matter.
Are we having fun yet?