20898 Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Proposed Rules 

Were any other discrepancies noticed during this inspection? 

For Ercoupe Service Memorandum No. 35 

Did you perform steps 1, 2, and 7 of the Ercoupe Service Memorandum No. 35? NO YES 

Were any other discrepancies noticed during this inspection? 

Send report to: Roger A. Caldwell, Aerospace Engineer, FAA, ANM–100D, Denver ACO, 

26805 East 68th Avenue, Room 214, Denver, Colorado 80249–6361; 

fax: (303) 342–1088; E-mail: roger.caldwell@faa.gov; and 

Univair Aircraft Corporation, 2500 Himalaya Road, Aurora, Colorado 80011 

Figure 1 

Paperwork Reduction Act Burden Statement 

(g) A federal agency may not conduct or 

sponsor, and a person is not required to 

respond to, nor shall a person be subject to 

a penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork Reduction 

Act unless that collection of information 

displays a current valid OMB Control 

Number. The OMB Control Number for this 

information collection is 2120–0056. Public 

reporting for this collection of information is 

estimated to be approximately 5 minutes per 

response, including the time for reviewing 

instructions, completing and reviewing the 

collection of information. All responses to 

this collection of information are mandatory. 

Comments concerning the accuracy of this 

burden and suggestions for reducing the 

burden should be directed to the FAA at: 800 

Independence Ave., SW., Washington, DC 

20591, Attn: Information Collection 

Clearance Officer, AES–200. 

Alternative Methods of Compliance 

(AMOCs) 

(h)(1) The Manager, Denver ACO, FAA, has 

the authority to approve AMOCs for this AD, 

if requested using the procedures found in 14 

CFR 39.19. In accordance with 14 CFR 39.19, 

send your request to your principal inspector 

or local Flight Standards District Office, as 

appropriate. If sending information directly 

to the manager of the ACO, send it to the 

attention of the person identified in the 

Related Information section of this AD. 

(2) Before using any approved AMOC, 

notify your Principal Maintenance Inspector 

or Principal Avionics Inspector, as 

appropriate, or lacking a principal inspector, 

your local Flight Standards District Office. 

(3) AMOCs approved for AD 52–02–02 are 

approved as AMOCs for this AD. 

Related Information 

(i) For more information about this AD, 

contact Roger Caldwell, Aerospace Engineer, 

FAA, Denver ACO, 26805 East 68th Ave., 

Room 214, Denver, Colorado 80249–6361; 

telephone: (303) 342–1086; fax: (303) 342– 

1088; e-mail: roger.caldwell@faa.gov. 

(j) For service information identified in this 

AD, contact Univair Aircraft Corporation, 

2500 Himalaya Road, Aurora, Colorado 

80011; telephone: (303) 375–8882, facsimile: 

(303) 375–8888; Internet: http:// 

univairparts.com. You may review copies of 

the referenced service information at the 

FAA, Small Airplane Directorate, 901 Locust 

St., Kansas City, MO 64106. For information 

on the availability of this material at the 

FAA, call (816) 329–4148. 

Issued in Kansas City, Missouri, on April 

7, 2011. 

Earl Lawrence, 

Manager, Small Airplane Directorate, Aircraft 

Certification Service. 

[FR Doc. 2011–9091 Filed 4–13–11; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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 

§ 39.7 each time you operate the aircraft or 

use the product. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Proposed Rules 20899 

The majority WG opinion is that the 

language of § 39.7, and its predecessor 

§ 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 

§ 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 

§ 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 § 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 noncompliance issues in one heading 

(proposed § 39.5, final version is § 39.7 

of the 2002 rulemaking). The final rule 

preamble stated that the agency added 

§ 39.9 ‘‘to refer to § 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 § 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 § 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 § 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 

§ 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 § 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 § 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, 

§ 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, § 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 § 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, 

§ 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, 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

20900 Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Proposed Rules 

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 

§§ 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 § 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] 

BILLING CODE 4910–13–P 

mstockstill on DSKH9S0YB1PROD with PROPOSALS