A current controversy over the scope of mandatory service bulletins has been caused by a decision of the NTSB involving the field overhaul of a Lycoming engine. In the July issue of AMT our editor described his thoughts and those of others on the subject. A further review of the subject follows with some additional thoughts and concerns for technicians and others to ponder.
Here is a short review if you missed it in the July issue.
After an initial hearing, an administrative law judge suspended a technician's mechanic certificate for 180 days based on violations of FAR 43.13(a) and 43.2(a)(1) and (2). The complaint alleged that the mechanic approved the engine for service after he performed the overhaul. He had sent the crankshaft, connecting rods, and pistons to a non-certified shop to be balanced. The complaint further stated that Lycoming had no approved process for balancing these parts in the field. In addition, it also stated that an employee who magnafluxed the parts was not certified to do so and that he did not follow the inspection requirements of a Lycoming Service Instruction Bulletin. When he test ran the engine he did not follow an approved standard or technical data acceptable to the Administrator. (He did not use a checklist or run sheet).
The Board stated that the investigation began when the customer notified the FAA that he believed the engine work was not done in accord with the regulations and that therefore his aircraft was not airworthy.
In his appeal the mechanic argued, among other things, that contrary to the judge's findings, he was not required to comply with the manufacturer's service bulletins, instructions, or letters, absent an Airworthiness Directive (AD) to do so. (This is commonly accepted dogma for Part 91).
He stated further that the FAA failed to present adequate evidence that the engine was not tested properly and also that the law judge failed to follow the guidelines of the FAA sanction guidance table.
The theory presented by counsel for the mechanic was simple. He said that the "Administrator did not prove that respondent had failed to comply with the methods, techniques, and practices prescribed in the current manufacturer's manual, because the manual was silent on balancing the crankshaft, connecting rods, and pistons in the field.
What the Board Said
True, Lycoming did not set out any approved process for balancing parts in the field in its overhaul manual. But the Board said in essence that this did not open the door for the mechanic to simply send his parts out for balancing to any shop that did this kind of work.
"We have previously held that where the maintenance manual is silent on a particular issue, the mechanic should seek approval from the Administrator regarding how to address that issue."
The requirement to follow service bulletins, service instructions, and letters is in the nature of an advisory suggestion or opinion by the Board, is not authorized, and may be unlawful. The Administrative Procedures Act (APA 5 USC sec 552 et seq.) must be followed when a regulatory requirement is attempted to be established by an administrative body. This attempt at an underground regulation requires notice and a comment period as described in the APA before any regulation can be created. Manufacturers' service bulletins, service instructions, and letters are not subject to any regulatory examination.
The Board replied further to the compliance with service bulletins, instructions, or letters argument as follows ...
Lycoming in a Service Instruction (No. 1285B, 5-23-97) requires that personnel performing Magnetic Particles Inspection shall be qualified and certified in accordance with ASNT Personnel Qualification SNT-TC-1A or Mil Std 410. Respondent argued that he did not have to comply with this directive from the manufacturer because he is Part 91 and this is not an AD. He said this requirement is not FAA mandated.
A recent NTSB ruling brings the question of mandatory sevice bulletins into discussion.
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...