A legal interpretation of the term "current"

OK, the economy is in a tailspin. There are more aircraft on the market than ever before, and lay-offs are happening all over the industry and the country. As if things aren’t bad enough, the FAA has issued a new interpretation that is so unreal that it fits right in with the rest of the unreal that we are all experiencing with the industry.

I thought that I had seen everything. I know that FAA legal council is a completely separate division of the FAA, but in my mind I had placed these people at the top of the heap — the “wise” men, if you will; a place to go when we are in need of rule clarification ... like the times when we aren’t in agreement with our local inspector and need a third opinion.

These FAA attorneys have received 8+ years of higher education, and taken (maybe a few times) one of the most difficult exams and passed in order to be called an attorney. Don’t you think that they would have answers that others wouldn’t? Well, after this memo, I’m convinced that these FAA attorneys are far enough removed from the real aviation world that their regulatory understanding can be, to say the least, deranged. There is obviously a need for oversight, or “adult supervision,” prior to allowing such nonsense as is contained in this memorandum to hit the streets.

14 CFR 91.409(f)(3)
I read and re-read this memorandum, dated Dec. 5, 2008, from Assistant Chief Council for Regulations Rebecca B. MacPherson (although written and prepared by Edmund Averman, an attorney in the Regulations Division of the Office of the Chief Counsel). If you haven’t seen it, you have to get a copy of it. (It’s available via Google.) The topic of the memo is “Legal Interpretation of 14 CFR 91.409(f)(3).” But let me warn you, I would sit down to read it if I were you. I was lucky — I fell backwards into my chair and escaped any serious injury.

The request came from the Flight Standards Division of the FAA and was for a legal interpretation of the term “current” as it pertains to the specified regulation, Part 91.409(f)(3).

“Whether, if a manufacturer amends its maintenance/inspection instructions, an affected aircraft operator is obliged to comply with the new instructions in order to be in compliance with 91.409(f)(3).”

FAR Part 91.409(f) is the rule that Part 91 (private) operators who are operating large or multi-turbine powered aircraft must comply with. The rule provides four different options for an operator to choose from to declare what program they will be using to maintain the airworthiness of their aircraft. Those four choices are as follows:

“(1) A continuous airworthiness inspection program that is part of a continuous airworthiness maintenance program currently in use by a person holding an air carrier operating certificate or an operating certificate issued under Part 121 or 135 of this chapter and operating that make and model aircraft under Part 121 of this chapter or operating that make and model under Part 135 of this chapter and maintaining it under §135.411(a)(2) of this chapter.

(2) An approved aircraft inspection program approved under §135.419 of this chapter and currently in use by a person holding an operating certificate issued under Part 135 of this chapter.

(3) A current inspection program recommended by the manufacturer.

(4) Any other inspection program established by the registered owner or operator of that airplane or turbine-powered rotorcraft and approved by the Administrator under paragraph (g) of this section. However, the Administrator may require revision of this inspection program in accordance with the provisions of §91.415.”

Part 91.409(f)(3) is the most common choice made by operators — the current inspection program recommended by the manufacturer.

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