[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Proposed Rules]
[Pages 30040-30043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12733]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2010-1167]


Proposed Airworthiness Directives Legal Interpretation

AGENCY: Federal Aviation Administration, DOT.

ACTION: Extension of comment period for a proposed airworthiness 
directives legal interpretation.

-----------------------------------------------------------------------

SUMMARY: The Federal Aviation Administration published a proposed 
airworthiness directives legal interpretation for comment. In response 
to several requests, we are extending the comment period to allow 
additional time for comment. Comments from the public are requested to 
assist the agency in developing the final legal interpretation.

DATES: Comments must be received on or before June 30, 2011.

ADDRESSES: You may send comments identified by Docket Number FAA-2010-
1167 using any of the following methods:

[[Page 30041]]

     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:

Background

    On April 14, 2011, the Federal Aviation Administration (FAA) 
published a proposed airworthiness directives legal interpretation in 
the Federal Register for comment (72 FR 20898). The FAA received 
numerous comments by the close of the comment period on May 16, 2011. 
Included in the comments were requests to extend the comment period to 
allow additional time for comment. The FAA is granting an extension 
until June 30, 2011, for the public to review the proposed 
interpretation and provide comments. We are repeating the publication 
of the proposal for the convenience of the reader.

The Request

    The FAA's 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 47998, 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:

Sec.  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.

Sec.  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.

    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.l3 (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

[[Page 30042]]

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.

Sec.  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, 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 the 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.

Sec.  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.

Sec.  39.17 What must I do if a change in a product affects my 
ability to accomplish the

[[Page 30043]]

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 May 18, 2011.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations.
[FR Doc. 2011-12733 Filed 5-23-11; 8:45 am]
BILLING CODE 4910-13-P