MORE CHALLENGES COMPLYING WITH A PREVIOUSLY-ADOPTED “CURRENT” MANUFACTURER’S MAINTENANCE PROGRAM
Maintenance facilities continue to struggle with the issue of compliance with a “current” manufacturer’s maintenance program as required by FAR 43.13(a). Although the FAA has provided some guidance on this issue, situations continue to arise that present unanswered compliance questions. The FAA’s Office of Chief Counsel recently addressed two real-life scenarios involving this issue in a July 18, 2012, legal interpretation.
The first situation presented to the Chief Counsel involved an aircraft owner’s delivery of an aircraft to a maintenance facility for an inspection in accordance with a maintenance program selected by the aircraft owner under FAR §91.409(f)(3). This particular maintenance program was current long ago when the owner acquired the aircraft and validly adopted it as the then-current inspection program. However, when the aircraft was delivered to the maintenance facility, the aircraft owner either no longer had the inspection program available or otherwise did not make it available to the maintenance facility.
To complicate matters, the maintenance facility was unable to obtain the applicable program from the manufacturer (since, as we all know, the manufacturer will only provide the program that is current at the time of the request), nor was the facility able to locate it from another source. Although the maintenance facility could use the newer (e.g., “current” when the inspection is performed) program, that could present a problem. It is possible that the newer program could contain revised inspection items that are not mandated by the FAA via airworthiness directive and that are not in the owner’s older program, and for which the aircraft owner does not want to pay.
The interpretation’s initial addressed this first scenario by stating, “[t]his appears to raise economic/contractual issues between you and the owner that do not involve the FAA.” Not particularly helpful. It went on to observe that the aircraft could select and adopt the newer program and have the inspection performed under that program. (But if the owner doesn’t want to pay for the newer inspection items that are not otherwise required by the FAA, why would the owner do that?)
If the aircraft owner does not adopt the newer program, the interpretation warns that “you may inspect the airplane only under the program that has been selected and is currently in effect for it.” It then concludes: “Under §91.403(a), the owner or operator of an aircraft is primarily responsible for maintaining it in an airworthy condition; therefore, it would behoove your customer to provide the proper inspection program to you.”
In the second situation, a maintenance facility is performing an inspection of an aircraft under an inspection program currently in effect, but adopted some time in the past. During that inspection, the facility determines that it needs to perform certain maintenance items in the process. Once again, the maintenance manual that was current when adopted in the past is not available and, unfortunately, the now-current manufacturer’s maintenance manual does not address the required maintenance item. So the question posed to the FAA was, “what source should the facility use to perform the required maintenance and be in compliance with FAR §43.13(a)?”
The interpretation’s simplistic (in my opinion) answer directed the facility to FAR §43.13(a) and said, “you may use ‘other methods, techniques, and practices acceptable to the administrator.’” In order to do that, the interpretation suggests that the facility may obtain repair data from sources such as the product’s manufacturer, FAA Advisory Circular AC 43.131 B (Acceptable Methods, Techniques, and Practices-Aircraft Inspection and Repair), and directly from the FAA. (Of course, that completely ignores the issues of what data the administrator may actually approve or how much additional time and expense may be required to obtain such approval.)
Finally, the interpretation generally concludes that if a facility is performing an the inspection required under FAR §91.409(f)(3) and the aircraft owner or operator does not provide the inspection program that was selected and is applicable to that aircraft, and the facility is unable to obtain the program from another source, then the facility may not perform that inspection.
From my perspective, this interpretation doesn’t provide particularly helpful guidance in terms of actual compliance with the regulations. However, perhaps it may be useful in dealing with an aircraft owner or operator. Maintenance facilities may want to reiterate the FAA’s position that the aircraft owner or operator is responsible for proper maintenance in compliance with the applicable regulations and highlight the interpretation’s recommendation that the aircraft owner or operator provide the current, adopted maintenance program to the facility.
After all, required inspections and maintenance need to be performed. If the applicable manual isn’t available to the maintenance facility, that work can still be done, but the cost of alternative methods of compliance is usually higher. That fact may provide the aircraft owner or operator with further incentive to provide the facility with the appropriate maintenance program.
At the end of the day, the interpretation may be correct that this presents an economic/contractual issue. However, a maintenance facility still needs to comply with the FARs. Make sure you have what you need in order to comply with the regulations and, hopefully, keep your customers happy in the process.
Greg Reigel is an aviation attorney, author and pilot. He holds a commercial pilot certificate (single-engine land and sea and multi-engine land) with instrument rating. His practice concentrates on aviation litigation, including aviation insurance matters and FAA certificate actions, and also aviation transactional matters. He is admitted to practice law in Minnesota and Wisconsin and advises clients throughout the country on aviation law matters. A cum laude graduate of William Mitchell College of Law, Reigel is the founder and president of the law firm Reigel & Associates Ltd./Aero Legal Services based in Hopkins, MN. He frequently speaks to groups on aviation and business law issues. Reigel is a member of the AOPA Legal Services Panel, secretary of the Minnesota Aviation Trade Association, and a member of the NTSB Bar Association, National Business Aviation Association, Minnesota Business Aviation Association, ABA-Forum on Air & Space Law, Lawyer-Pilot Bar Association and Experimental Aircraft Association.