In a recent article I wrote about compliance with mandatory service bulletins. The article raised, but did not answer, the question of whether a manufacturer’s specification that its maintenance manual includes all service bulletins creates an obligation under the Federal Aviation Regulations (“FAR’s”) to comply with those service bulletins. A recent opinion by the National Transportation Safety Board (“NTSB”) has answered that question in the affirmative and, in the process, has raised potentially serious implications for both aircraft owners and aircraft mechanics.
In Administrator v. Law, the FAA issued an order suspending the mechanic’s airframe and powerplant certificate for 180 days for violations of FAR’s 43.13(a) and 43.2(a)(1) and (2). The order followed an inspection performed by an FAA air safety inspector after one of the mechanic’s customers notified the FAA that he believed the work the mechanic had completed on his aircraft’s engine rendered the aircraft unairworthy.
According to the FAA, the mechanic sent the crankshaft, connecting rods, and pistons from a Textron Lycoming engine to a non-certified facility for balancing and then approved the engine for subsequent service. The FAA’s complaint also alleged that Lycoming had no approved process for balancing crankshafts, connecting rods, or pistons in the field and that the mechanic ordered a non-certified employee to perform a magnetic particle inspection of the engine’s crankshaft, and that the mechanic’s employee did not follow the inspection requirements of a Lycoming Service Instruction bulletin. Finally, the FAA claimed that the mechanic performed a ground run-up of the engine that was not consistent with any approved standard or technical data acceptable to the Administrator.
The mechanic appealed the FAA’s order to the NTSB. At the hearing, the FAA offered into evidence the service bulletin at issue, Textron Lycoming Service Instruction No. 1285B (May 23, 1997), which required that “[p]ersonnel performing Magnetic Particle Inspection shall be qualified and certified in accordance with ASNT Personnel Qualification SNT-TC-1A or MIL-STD-410.” Although the mechanic did not dispute that his employee did not hold any certificates when he completed a magnetic particle inspection on the Lycoming engine in question, the mechanic argued that manufacturers’ service instructions do not apply to mechanics performing maintenance on Part 91 aircraft. At the close of the hearing, Administrative Law Judge Geraghty held that the mechanic had violated each of the FAR’s cited by the FAA. However, he reduced the suspension of the mechanic’s A & P certificate from 180 to 120 days based upon the mechanic’s apparent misunderstanding of the FAR’s violated by the mechanic. The mechanic then appealed the ALJ’s decision to the full NTSB board.
One of the mechanic’s arguments on appeal was again that a mechanic is not required to comply with manufacturer’s service bulletins, instructions, or letters in the absence of an Airworthiness Directive mandating such compliance. The Board disagreed and held that “[w]hile compliance with service instructions or service bulletins may not be mandatory in the absence of an Airworthiness Directive, a manufacturer may legitimately incorporate such service publications into a manual by reference.” In this case, the Lycoming overhaul manual incorporated all future service instructions by reference: “In addition to this manual and subsequent revisions, additional overhaul and repair information is published in the form of service bulletins and service instructions. The information contained in these service bulletins and service instructions is an integral part of, and is to be used in conjunction with, the information contained in this overhaul manual.” Based upon this language, the Board found that the mechanic’s use of a non-certified person to perform the inspection and failure to use the manufacturer’s prescribed inspection technique violated the FAR’s as alleged by the FAA.
The Board’s decision on this issue is interesting in that it does not cite to any precedent to support its position. Nor does a cursory search of NTSB opinions disclose any such precedent. Yet the Board has definitely sent a signal to manufacturers that they can require compliance with service bulletins that may previously have been ignored by aircraft owners/operators because they were not mandated by an airworthiness directive simply by incorporating the service bulletins by reference into their manuals. Keep in mind that not all manufacturers’ manuals include this type of “incorporation by reference” language. However, many do. And it is likely that many more manufacturers will include this language in the future. As a result, a conservative analysis of this decision reveals potentially serious and far-reaching implications that will affect both aircraft mechanics and aircraft owners.
For aircraft owners, it will no longer be enough to perform a cost benefit analysis to compare the cost of compliance (How much will the labor or parts required by the service bulletin cost?) with the benefit obtained by complying with the service bulletin (Will compliance enhance the safety or value of the aircraft or limit the aircraft owner’s liability exposure to third-parties?). If the manufacturer’s manual includes the “incorporation by reference” language, compliance will be mandatory in order to have an airworthy aircraft. Unfortunately, this will likely raise the cost of maintaining an aircraft. However, failure to comply will expose the aircraft owner/operator to potential FAA enforcement action.
For aircraft mechanics, it will no longer be enough to simply expect the aircraft owner/operator to supply any pertinent service bulletins. The aircraft mechanic will need to be aware of applicable service bulletins and to communicate the information to the aircraft owner/operator. This may mean increased subscription costs to add service bulletin databases to the aircraft information maintained by an aircraft mechanic. If the aircraft owner/operator does not authorize the work, the aircraft mechanic will not be able to sign the aircraft off as airworthy or return the aircraft to service. Relying upon an aircraft owner/operator’s representation that he or she has provided you with all applicable service bulletins or claiming that the aircraft owner/operator did not authorize compliance with a service bulletin will not be defenses for an aircraft mechanic’s returning an aircraft to service in an unairworthy condition due to non-compliance.
As always, an aircraft owner/operator’s decisions regarding maintenance are best made after discussion and consultation with a trusted aircraft mechanic. This NTSB opinion may well take some of the discretion out of the decision-making regarding whether or not to comply with a service bulletin. In the future, it will be in both the aircraft owner/operator’s and aircraft mechanic’s best interests to be informed regarding service bulletin applicability and compliance.
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