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.
The interpretation states that indeed the aircraft owner/operator is not required (“is not obliged”) to comply with any revisions to the manufacturer’s maintenance manual or inspection program. The memorandum clearly states that the interpretation applies to the use of the word “current” in both “current maintenance instruction,” and “current inspection program” as used within the regulations. Webster’s defines the word current as “in the current moment.” Using that definition, the memorandum applies it to say that the current maintenance instruction, or the current inspection program, is that instruction or program that was “in the current moment” when the aircraft was first certified.
The basis for that interpretation is the Administrative Procedures Act (APA) 5 U.S.C. 553. This act states that the government cannot impose new rules upon the industry without first notifying the public and providing a comment period during “the notice and comment rulemaking process.” The author contends that the maintenance manual, which includes both the “maintenance instruction” and the “inspection program” is, in fact, regulation, apparently by reference, and therefore, any changes must be subject to the notice and comment rulemaking process in order for them to be required.
I’ll try to keep the examples of why this will never work to say, six.
If the term “current” only applies to the document (maintenance instructions or inspection program) that was “in the current moment” when the aircraft was first certified, and the operator is not bound to the most current revision of the aircraft manufacturer’s publications, then the operator has to be bound to the requirements of the document that was current at the time the aircraft received its airworthiness certificate.
Problem: In the real world, day-to-day access to a maintenance manual that was current 10, 15, or 20 years ago is nonexistent.
Assistant Chief Council McPherson has made an assumption that is completely inaccurate. The assumption is that the manufacturer only makes revisions to the maintenance manual and inspection program due to improvements or changes to the aircraft design.
Problem: Current production aircraft models have maintenance manuals that receive revisions at least once per year, and often many times annually, not to mention the use of temporary revisions between official revisions. Even aircraft that are no longer in production have maintenance manuals that are continually subject to revisions. The manufacturer has a responsibility to the owners of its aircraft to continually improve maintenance methods and inspection criteria as it learns more about the aircraft.
Aircraft operated under Part 135 that qualify as “nine-or-less” aircraft (pertaining to the number of passengers the aircraft can hold) are subject to the same regulation, 14 CFR Part 91.409 (f)(3)), unless the Administrator determines that the manufacturer’s maintenance program is not adequate for that operation (See Part 135.419).
Problem: Part 135 aircraft, being aircraft for hire, are historically subject to more stringent rules than those operating under Part 91, and are certainly not safer to operate when they are maintained in accordance with an out-of-date maintenance manual.
Mechanics would be required to obtain the maintenance manual revision that was current when the aircraft received its original airworthiness certificate in order to be using the legal maintenance instructions.
Problem: These maintenance manuals are not available. It’s that simple.
History of civil penalties
Should we look into the history of civil penalties laid upon operators who were said to be in violation of the rule, but indeed were not because the requirement they were held to (by implied violation) was not a current requirement when the aircraft was manufactured or when the owner adopted the program?
Problem: Historically, hundreds of civil penalties and/or certificate actions (certificate revocations and suspensions), have been levied by the FAA on the grounds that the maintenance was not being performed in accordance with the most current maintenance manuals. Those violations actually referenced the regulations that are in question here as being violated (FAR Part 43.13 and Part 91.409).
Corrosion prevention and control programs (CPCPs) were initiated following the separation of the top of a Boeing Model 737 from the rest of the aircraft operated by Aloha Airlines on April, 28, 1988 — a true awakening for the aviation community, which prompted an Aging Aircraft Initiative by the FAA. The FAA, at that time, issued Airworthiness Directives that required the manufacturers of this type of aircraft to revise their inspection programs to include a new requirement for corrosion inspections, termed (CPCP).
Problem: With this new interpretation, operators of aircraft subject to the intended requirements of the CPCP programs would not be required to comply with those programs until the maintenance manual has been published as a notice of proposed rulemaking, received comment from the flying public, and then finally made regulation. Sure, the airworthiness directive has gone through the comment rulemaking process, but the maintenance manual that was revised to include these new inspections was only current (by this interpretation) for aircraft manufactured after the revision.
Sort of defeats the purpose of an aging aircraft initiative, wouldn’t you say?
As I read through the memorandum several times, I think I found the missing link. According to McPhearson, the Administrative Procedures Act (APA) 5 U.S.C. 553 states that all “substantive” rules are subject to the comment rulemaking process, which requires a notice of proposed rulemaking and comment period, etc. Substantive is the key term here. In trying to define “current” as it pertains to the maintenance instructions provided by the aircraft manufacturers, she missed the definition of the term substantive.
Substantive: “Independent in existence or function; not subordinate.”
The definition of substantive clearly separates the Code of Federal Regulations from documentation referenced therein. The maintenance manual is not a substantive rule because it cannot exist as a requirement without the regulation that refers us to it. The Code of Federal Regulations are the substantive rules. This is why, for example, service bulletins are issued but are not required by law until an airworthiness directive has been drafted and run through the comment rulemaking process. Airworthiness directives routinely refer to service bulletins and maintenance manuals issued by the aircraft or component manufacturers, and by that reference, the bulletin becomes mandatory. The bulletin, however, is not substantive rule.
So, I know this is a position that I, one in a crowd of thousands, take and because I am not in any position to overturn an interpretation, I appeal to the Assistant Chief Council Rebecca McPhearson. Take another look at this regulatory interpretation, and get some real-world FAA safety inspectors involved so that you can be certain that your interpretation actually promotes safety for the flying public and is useful for the future.
Joe Hertzler is the CEO and co-founder of Avtrak Inc., provider of the industry’s first Internet-based and compliance-focused maintenance tracking service — Avtrak GlobalNet. Avtrak’s GlobalNet technology is the engine behind Gulfstream CMP.net and Sikorsky HelotracII. GlobalNet is the system of choice for many operators of more than 140 models including Bombardier, Hawker/Beechcraft, and Dassault Falcon aircraft.