[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Proposed Rules]
[Pages 20898-20900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8972]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA-2010-1167]
Proposed Airworthiness Directive Legal Interpretation
AGENCY: Federal Aviation Administration, DOT.
ACTION: Proposed airworthiness directive interpretation.
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SUMMARY: The Federal Aviation Administration is considering issuing a
legal interpretation on various provisions in the regulations
applicable to airworthiness directives. Comments from the public are
requested to assist the agency in developing the final legal
interpretation.
DATES: Comments must be received on or before May 16, 2011.
ADDRESSES: You may send comments identified by Docket Number FAA-2010-
1167 using any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and
follow the online instructions for sending your comments
electronically.
Mail: Send comments to Docket Operations, M-30; U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., Room W12-140, West
Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Bring comments to Docket Operations in
Room W12-140 of the West Building Ground Floor at 1200 New Jersey
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at 202-493-2251.
FOR FURTHER INFORMATION CONTACT: John King, Staff Attorney, Regulations
Division, Office of the Chief Counsel, Federal Aviation Administration,
800 Independence Avenue, SW., Washington, DC 20591; telephone: 202-267-
3073.
SUPPLEMENTARY INFORMATION:
The Request
The Federal Aviation Administration's (FAA) Organization/Procedures
Working Group (WG) of the Airworthiness Directive Implementation
Aviation Rulemaking Committee (AD ARC) requested that the FAA provide a
legal interpretation of several provisions in 14 Code of Federal
Regulations (CFR) that would help resolve a number of issues that have
been debated within the WG. These issues partly result from certain
changes made in the plain language revision to CFR part 39 in 2002 (see
67 FR 48003, July 22, 2002).
Question 1--Continuing Obligation
Some members of the WG question the extent of an aircraft
operator's continuing obligation to maintain an AD-mandated
configuration. They ask about two regulations:
Section 39.7 What is the legal effect of failing to comply with an
airworthiness directive?
Anyone who operates a product that does not meet the
requirements of an applicable airworthiness directive is in
violation of this section.
Section 39.9 What if I operate an aircraft or use a product that does
not meet the requirements of an airworthiness directive?
If the requirements of an airworthiness directive have not been
met, you violate Sec. 39.7 each time you operate the aircraft or
use the product.
[[Page 20899]]
The majority WG opinion is that the language of Sec. 39.7, and its
predecessor Sec. 39.3, imposes an operational mandate that the
requirements of the AD be maintained for each operation occurring after
the actions required by the AD are accomplished. They conclude that
Sec. 39.9 expresses the well-established legal position that for
continuing operations of products that do not comply with an AD, each
flight is a separate violation.
The minority WG opinion is that if the unsafe condition identified
in the AD was fixed at a moment in time, then Sec. 39.7 no longer
applies. The conclusion of the WG minority was that even if the product
was determined to be in a condition contrary to the requirements of the
AD at a later time, this change in configuration may be a violation of
CFR 43.13(b), but not Sec. 39.7.
Proposed Response 1--Continuing Obligation
Section 39.9 notes the need for both initial action by the aircraft
operator and continued compliance by that aircraft operator with the AD
requirements. Section 39.9 was added to the final rule in 2002 as a
result of comments that the proposed version of the rule language
combined compliance and non-compliance issues in one heading (proposed
Sec. 39.5, final version is Sec. 39.7 of the 2002 rulemaking). The
final rule preamble stated that the agency added Sec. 39.9 ``to refer
to Sec. 39.7, which is the rule that operators will violate if they
fail to operate or use a product without complying with an AD that
applies to that product.''
Section 39.9 explains the continuing obligation for aircraft
operators to maintain the AD-mandated configuration. Section 39.7
imposes an operational requirement. Because the AD imposes an
enforceable requirement to accomplish the mandated actions, the only
way to give Sec. 39.7 any meaning is to recognize that operators are
required to maintain the AD-mandated configuration. Once the AD
requirements are met an operator may only revert to normal maintenance
if that maintenance does not result in changing the AD-mandated
configuration.
The objective of part 39 and ADs generally is not just to require
accomplishment of particular actions; it is to ensure that, when
products are operated, they are free of identified unsafe conditions.
Section 39.7 is the regulatory means by which the FAA prevents
reintroduction of unsafe conditions. In 1965 the FAA recognized that
maintenance may be the cause of some unsafe conditions: ``The
responsibilities placed on the FAA by the Federal Aviation Act justify
broadening the regulation [part 39] to make any unsafe condition,
whether resulting from maintenance, design, defect, or otherwise, the
proper subject of an AD.'' (Amendment 39-106; 30 FR 8826, July 14,
1965). Prior to Amendment 39-106 ADs could not be issued unless the
unsafe condition was related to a design feature. After Amendment 39-
106 ADs could be issued for unsafe conditions however and wherever
found. The FAA does not issue ADs as a substitute for enforcing
maintenance rules. If a maintenance process is directly related to an
unsafe condition, that maintenance action would be proper for an AD.
Particularly for unsafe conditions resulting from maintenance, it would
be self-defeating to interpret Sec. 39.7 as allowing reversion to the
same maintenance practices that caused or contributed to the unsafe
condition in the first place.
Question 2--Additional Actions
Some members of the WG questioned the extent of an aircraft
operator's obligation to accomplish actions referenced in an AD beyond
those actions necessary to resolve the unsafe condition specifically
identified in an AD.
The opinion of these WG members is that a reasonable interpretation
of the language in Sec. 39.11 directing action to ``resolve an unsafe
condition'' limits the FAA from requiring actions that do ``not relate
to correcting'' the identified unsafe condition. In other words, an AD
is limited to those tasks that resolve the unsafe condition, even if
other tasks are explicitly listed in the AD or in a referenced service
bulletin (SB). Even if Sec. 39.11 doesn't explicitly limit the types
of actions that the FAA may mandate in ADs, these members believe that
ADs are limited to imposing requirements that are both necessary and
``directly related'' to addressing an unsafe condition because that is
the sole purpose of ADs, as defined in part 39. The belief is that this
would allow an operator to comply with those actions that, in the
operator's opinion, correct the unsafe condition without having to
obtain an alternative means of compliance (AMOC) for other actions,
such as access and close-up procedures, that are ``not directly
related'' to addressing that identified unsafe condition.
Other members of the WG have the opinion that Sec. 39.11 is merely
descriptive of the types of actions required by an AD; it neither
imposes obligations on the operator nor limits the FAA's authority in
issuing an AD. These members believe that, given the FAA's broad
regulatory authority, ADs may impose requirements that operators may
not consider necessary and ``directly related'' to resolving the unsafe
condition.
Proposed Response 2--Additional Actions
The FAA points to the language contained in Sec. 39.11 that
answers the WG's second question.
Section 39.11 What actions do airworthiness directives require?
Airworthiness directives specify inspections you must carry out,
conditions and limitations you must comply with, and any actions you
must take to resolve an unsafe condition.
First Title 49, United States Code, Sec. 44701, establishes the
FAA's broad statutory authority to issue regulations in the interest of
aviation safety, and the issuance of an AD is an exercise of this
authority. While describing the types of actions required by ADs, Sec.
39.11 does not limit the broad authority established by the statute.
The requirements of the AD are imposed by the language of the AD
itself, and not by Sec. 39.11. Thus an AD may require more actions
than correcting the specific unsafe condition. An example would be an
AD requirement for certain continuing maintenance actions to prevent or
detect the unsafe condition in the future.
In developing an AD, the FAA exercises its discretion in
determining what actions are to be required in the interest of aviation
safety. This discretion is limited only by the Administrative Procedure
Act's prohibition on rulemaking actions that are ``arbitrary and
capricious.'' Provided the actions required by an AD are reasonably
related to the purpose of resolving the unsafe condition, it is within
the FAA's discretion to mandate them. For example, service information
frequently includes instructions for accessing the area to be worked on
to address the unsafe condition. Because these access instructions are
reasonably related to addressing the unsafe condition, it is within the
FAA's discretion to mandate them.
We understand that some members of the AD ARC believe that some ADs
are overly prescriptive with respect to mandated actions that they
believe are unnecessary to address the unsafe condition. As explained
previously, Sec. 39.11 does not address this concern. Rather, the
rulemaking process by which individual ADs are adopted provides the
public with an opportunity to identify and comment upon these concerns
with each AD. In addition,
[[Page 20900]]
each AD contains a provision allowing for approval of an AMOC, which
allows operators to obtain relief from requirements they consider
unnecessary or unduly burdensome.
Question 3--Use of the term ``Applicable''
A WG member cited the use of the term ``applicable'' in a specific
AD, AD 2007-07-02 (72 FR 14400, March 28, 2007), which contains these
requirements:
(f) Within 60 months after the effective date of this AD: Modify
the activation mechanism in the chemical oxygen generator of each
passenger service unit (PSU) by doing all the applicable actions
specified in the Accomplishment Instructions of the applicable service
bulletin specified in Table 1 of this AD. [Emphasis added.]
The WG member asked for an explanation of the FAA's use of the word
``applicable'' in the two instances of its use in paragraph (f) of the
AD.
Proposed Response 3--Use of the Term ``Applicable''
``Applicable'' has the same meaning in both places in paragraph
(f). The second usage references Table 1 in the AD that identifies the
model(s) of airplanes to which each service bulletin applies. So the
``applicable service bulletin'' is the one that applies to each
corresponding airplane model, as indicated in the table in the AD.
Similarly, ``all the applicable actions'' specified in each applicable
service bulletin are those actions that are identified as applying to a
particular airplane. ``Applicable'' is a necessary qualifier in this
context for two reasons: (1) In many ADs, the referenced service
bulletins specify different actions for different airplane
configurations, typically identified as ``Group 1, Group 2,'' etc. (2)
In many ADs, the referenced service bulletins specify different actions
depending upon conditions found during accomplishment of previous steps
in the instructions, for example, if a crack is smaller than a
specified size, repair in accordance with the Structural Repair Manual;
if larger, repair in accordance with a method approved by the Aircraft
Certification Office. So ``applicable'' limits the AD's requirements to
only those that are specified in the service bulletin for the
configuration and conditions of the particular airplane. We intend for
the word ``applicable'' to limit the required actions to those that
apply to the particular airplane under the specific conditions found.
The opinion that ``applicable'' in this context should be
interpreted to refer only to those actions in the service bulletin that
are necessary to address the unsafe condition, and that operators
should not be required to accomplish any other actions that they
determine are not necessary, is incorrect. Without the modifier
``applicable,'' the requirement to accomplish ``all actions specified
in the service bulletin'' would literally mandate accomplishing all
actions, whether or not applicable to the configuration and condition
of a particular airplane. The modifier ``applicable'' is necessary to
avoid this literal, but unintended and likely overly burdensome,
meaning.
For example, in AD 2007-07-02 different actions are required
depending on the conditions found while accomplishing the modification.
The adjective, ``applicable,'' is necessary to limit the required
actions to those that are indicated for the conditions found. The
purpose of the phrase, ``by accomplishing all the applicable actions
specified,'' is to eliminate precisely the ambiguity that would be
introduced by the WG members' question. The operator is required to
accomplish ``all'' the actions that are ``applicable'' to the affected
airplane, without allowing discretion to determine which ones are, in
the operator's opinion, ``necessary'' to address the unsafe condition.
Question 4--Impossibility
A member of the AD ARC questions whether an AD needs to
specifically address ``impossibilities'' (for example, an AD requiring
an action that is not possible for the specific aircraft to which the
AD applies, such as modifying parts that have been removed during an
earlier alteration).
Proposed Response 4--Impossibility
The FAA points to the language of Sec. Sec. 39.15 and 39.17 that
answers the fourth question.
Section 39.15 Does an airworthiness directive apply if the product has
been changed?
Yes, an airworthiness directive applies to each product
identified in the airworthiness directive, even if an individual
product has been changed by modifying, altering, or repairing it in
the area addressed by the airworthiness directive.
Section 39.17 What must I do if a change in a product affects my
ability to accomplish the actions required in an airworthiness
directive?
If a change in a product affects your ability to accomplish the
actions required by the airworthiness directive in any way, you must
request FAA approval of an alternative method of compliance. Unless
you can show the change eliminated the unsafe condition, your
request should include the specific actions that you propose to
address the unsafe condition. Submit your request in the manner
described in Sec. 39.19.
If a change to a product makes it impossible to comply with the
requirements of an AD, then the operator must request an AMOC approval.
The FAA does not have the resources to determine the modification
status of every product to which the AD may apply. If it is impossible
to comply with an AD as written, that does not mean the product does
not have the unsafe condition. The only way to make sure the product
does not, or that there is another acceptable way to address it, is to
require an operator to obtain an AMOC approval.
For several years before part 39 was revised in 2002 the FAA
included a Note in every AD that contained the same substance as the
regulation. This revision to the regulations was a result of some
operators claiming that an AD did not apply to a particular airplane
because the airplane's configuration had changed, even though that
airplane was specifically identified in the ``Applicability'' paragraph
of the AD. But a change in product configuration does not necessarily
mean that the unsafe condition has been eliminated, and in some cases
the unsafe condition may actually be aggravated. So it is necessary to
emphasize that the ``Applicability'' paragraph of the AD determines AD
applicability, not the configuration of an individual airplane. In the
case of the affected component having been removed from the airplane,
the operator must obtain an AMOC approval. If the removed component is
replaced with a different component that may or may not retain the
unsafe condition, this is a technical issue that must be addressed
through the AMOC process. There are infinite variations on the
``impossibility'' issue that cannot be anticipated when drafting an AD
but for which the AMOC process is well suited.
Issued in Washington, DC, on April 7, 2011.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations.
[FR Doc. 2011-8972 Filed 4-13-11; 8:45 am]
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