By Bill O’Brien
In an email from Joe Escobar, the editor of this magazine, he wrote: “There seems to be a trend for OEMs to cover their hind ends by incorporating language in their service bulletins that the service bulletin is an amendment to the maintenance manual/ICA, and is mandatory for “ongoing airworthiness compliance” under FAR 43.13.
“Where does this put the mechanic? In the FAA’s eyes, service letters, bulletins, etc.are not mandatory unless referenced in an AD. Would you like to address the issue in an article? What advice would you give mechanics?”
To begin, this problem of service bulletins being mandatory or not, has been around since the late ’70s. To examine the problem we have to look at three sides of the mandatory service bulletin issue: The manufacturer, the FAA, and the mechanic.
It has been my experience that in the past when a manufacturer publishes a service bulletin and says it’s mandatory, or it says it is an amendment to its maintenance manual, or Instructions for Continued Airworthiness, that product it has produced has a “major” airworthiness defect. The problem today with this approach is that more and more service bulletins of all kinds now have “mandatory” stamped on them.
I believe the manufacturers go the mandatory route at the advice of their corporate lawyers for two reasons. First, even if the service bulletin talks about failures that happen on very high-time aircraft or the aircraft/part is used in unusual operating requirements like fire fighting or pipe line patrol and the chances of the same problem happening in normal operations is small, there is still a risk of being sued. So to offset the risk it is becoming more common for manufacturers to use the shotgun approach and make as many of their service bulletins mandatory.
The second reason is despite the FAA stance on mandatory service bulletins it can be effectively argued in civil court that the manufacturer did make a good faith effort to advise the owner of the aircraft/product’s defect by making the service bulletin mandatory. Judges and juries love the nice guy.
Even I must reluctantly agree that in this sue-crazy society where a lawyer can sue a Mom and Pop run cleaners in D.C. for $54 million for a lost pair of pants, this C.Y.A. approach on service bulletins makes good legal sense.
Before I get started it is important that you understand the difference between an FAA order and an FAA advisory circular (AC) that I will quote in this article. An FAA order contains guidance to FAA field offices (FSDO/MIDO) on how FAA General Council (Legal) has interpreted a rule(s) and the mandatory policy for FAA inspectors to follow enforcing that rule(s). An FAA AC is not mandatory policy, but advisory in nature and describes one way, but not the only way, for industry to comply with a rule or policy.
I first did a little research on the FAA policy stance on mandatory service bulletins. By the way, the order and ACs mentioned in this article are available at the FAA regulatory and policy library at: http://www.faa.gov/regulations_policies. I found that FAA policy goes back to Order 8620.2 Applicability and Enforcement of Manufacturers’ Data published on Nov. 2, 1978. Back then when I had hair, the big argument was whether or not service bulletins were mandatory. The background paragraph of the order states: There exists a difference of opinion among field inspectors concerning the manner in which manufacturer maintenance manual material including service letters and service bulletins, could be enforced by the FAA. FAR 43.13 requires all persons to use methods, techniques, and practices acceptable to the Administrator while performing aircraft maintenance. The manufacturer’s maintenance manuals, service bulletins, and service letters have always been regarded as a source of acceptable data for complying with 43.13(a)(b), however, such acceptability does not, in itself, impose an enforcement or mandatory compliance requirement. In the summary paragraph of the order it states that compliance with manufacturer’s maintenance instructions is required when:
- Made mandatory by an AD or other specific rule within the FAR.
- Made mandatory by the type certificate data sheet.
The next bit of research I uncovered is AC 20-115 Manufacturers’ Service documents published on Oct. 22, 1981. It is a 4 1/2-page AC that when you boil all the blood and fat out of it the main thrust of the AC is that any change to the aircraft’s type design requires FAA Approval. This was an attempt by the FAA to stop manufacturers from using the words “FAA Approved” or similar words in a back door attempt to mandate the operator to have the service bulletin complied with. To set the record straight, paragraph (e) of the AC states: It has also been common practice in the past for manufacturers to mark entire service documents, such as service bulletins and all-operator letters, as “FAA Approved, “FAA/DER Approved,” or DER Approved. This practice implies that the service document has been reviewed, evaluated, and approved in total by the FAA. However, since there is no regulatory basis for FAA approval of certain information in service documents, only the type certification data should be indicated as FAA Approved. A single statement to this effect should be included on the appropriate page of the document.
Paragraph (b)(2) of the AC states: Service documents should be neither treated or represented as the official FAA approval documents, unless either a letter of design approval from the FAA or a record that compliance has been determined by an FAA designees is on file for recommended actions indicated as FAA-approved in service documents.
The next bit of research on mandatory service bulletins that I found was in AC 20-177A Use of Manufacturers’ Maintenance Manuals. This AC was just published on April 6, 2007. This effort was a response to the hundreds of calls to FAA headquarters each year about the mandatory service bulletin problem. Paragraph 6 of the AC states: The following is a list of situations when service bulletins (SB) would be regulatory and covers most situations ASIs encounter. (Note: reference to manufacturer’s SB will encompass all manufacturers’ service information.)
- All or a portion of a SB is incorporated as part of an Airworthiness Directive (AD).
- SB are a part of the FAA–approved Airworthiness Limitation section of the manufacturer’s manual or the type certificate.
- SB are incorporated directly or by reference into some type of FAA-approved inspection program, such as an Approved Aircraft Inspection Program or CAMP.
- SB are listed as an additional maintenance requirement in the certificate holder’s Operation Specifications.
The bottom line, not-with-standing the four exceptions noted above, is the FAA states again that manufacturers’ service bulletins are not mandatory because in order to be mandatory, they the manufacturer, must have the regulatory authority to change the product’s type design. Only the FAA has that authority.
Every mechanic, repair station, and FBO has run up against the mandatory service bulletin question, “Do service bulletins apply or not?” To its credit the FAA has not wavered and has stated over the last 30 plus years that service bulletins are not mandatory. But there is another player in the game. The latest quandary involving mandatory service bulletins was last year’s NTSB ruling in Law verses the Administrator that said: “While compliance with service instructions or service bulletins may not be mandatory in the absence of an AD, a manufacturer may legitimately incorporate such service publication into a manual by reference.”
For an in-depth understanding of the Board ruling, I recommend you pull up Steve Prentice’s, AMT contributor, September 2006 article: Mandatory Bulletins and Service Bulletins vs. AD Limitations, and TCDs. His article also explains in detail his legal concerns on the Board’s ruling. I believe that the mechanic will appeal the finding and win because no manufacturer has the right to change type design.
So until that ruling reversal happens what do we have here? We now have confusion at the very basic level of how a mechanic or air agency complies with Part 43 data requirements. Unless good policy on this subject comes out soon, there will be more lawsuits and more problems.
If I was a mechanic on the hangar floor trying to make a living and trying to stay out of court at the same time, I would do the following. Before performing an inspection on a Part 91 aircraft, I would prepare a list of all the manufacturer’s mandatory service bulletins and add YES/NO blocks along each service bulletin. Then I would contact the owner and explain that FAA policy does not require compliance with mandatory service bulletins.
Next, I would tell him that as the owner/operator, under section 91.403(a) General, he is primarily responsible for the airworthiness of the aircraft.
With that said, I would have the owner pick and choose all, some, or none of the mandatory service bulletins he wants me to do. I would make sure that his choices are in writing and he autographs the list. Then I would attach the paperwork to the service order. To be fair, I would tell him first to check with his insurance provider and see if they will pay if there was an accident and the aircraft had a good FAA annual but the mandatory service bulletins were not complied with.
This way the mechanic made a good faith effort to explain to the owner any problems with the aircraft and he can still meet the minimum standards in Part 43. I realize that my advice is not a perfect solution to this long-term problem; it is the best that I could come up with.
Let’s fix it!
After 30 plus years of chasing our tails don’t you think it is time to fix this mess? All three parties have wound up in court over this. The only people that win when the regulations are unreliable are the lawyers.
Obviously, this is a legal problem and it will take a legal solution to fix it. So the wet paper bag of responsibility must fall on the FAA General Council to make a final ruling on this issue. Ideally, they will come out with a NPRM where everyone will comment on the proposed rule and have their say and hopefully reason will prevail when the rule is signed by the Administrator. If the NPRM route is not viable then the next best thing that General Council could do is to put out an FAA order stating what documentation/data a mechanic must meet to comply with Part 43, and whether or not manufacturers can make service bulletins or other documentation mandatory.
Now let me tell you, in my other life, it has been my painful experience that FAA General Council is not going to fix this problem unless they are pushed. To push, contact: Kerry B. Long, FAA Chief Council at (202) 267-3222 or fax (202) 267-3227. Let him know how hard it is to make a living when the rules that define airworthiness are no longer clear and confusion reigns.