The Current definition of the Current interpretation of the term “Current” – Use Common Sense, Please!
The topic this month is one that I have had a lot of fun with since it first happened in December 2008. I have discovered, however, that it is not as funny as I once thought. I was recently at a conclave of top maintenance managers from across the country and I was shocked to hear how some of us, that is “we the industry,” have chosen to respond to what I consider one of the biggest blunders of regulatory interpretation that has occurred since I got started in the industry back in the late 1980s. Geez, I’m getting old.
I want to start by telling a story about a man who had a huge impact on me and my career. The funny thing is that when I was learning from this man way back in 1990, I had no idea how wise he was and what a remarkable teacher he was. He taught me things that I didn’t even know I was learning, in addition to the basic things I needed to know to do the job. (I choose not to mention the company’s name, only out of respect for the company and the fact that I haven’t asked for permission to mention them in this forum. Working at this company many years ago was absolutely the best experience I could have ever had in many ways.) The gentleman, whose name I use here with reverent gratitude and respect, taught me the difficult skill of being able to see with both a regulatory structure and discipline while looking at decision making through the lens of the business at the same time. Harry Burbank was a man of stature that would intimidate the cockiest new mechanic, and thus he was able to maintain a strong hold on the quality of the work being accomplished. If you have been in this industry for 25 to 30 years, you very likely knew Burbank as well. Burbank was the chief inspector, and when I was assigned to the inspection department, Burbank was the one assigned to teach me the ropes. In addition to teaching me that it takes a three-Mississippi fire to cook a steak (you can’t hold your hand over the hot coals any longer than three Mississippi seconds), Burbank taught me how to manage in compliance. He encouraged me not to try to memorize any of the rules and regulations, but rather what each section was about, when to use that section, and where to find the information that was pertinent to the subject at hand. In addition, Burbank showed me how the rules all tie together, helping me to identify bridges between the sections, knowing that few important decisions are simple in aviation. Probably the most important single thing that Burbank taught me, and the reason for his involvement in this article, is the ability to apply common sense to every regulatory decision. What this really means is that not every situation that looks the same is the same. When you understand the regulatory structure, the bridges between all the regulations, where to find the pertinent rules, and the needs of the business and the customer, only then can you make the best decision. Thank you, Harry Burbank!
Where has common sense gone?
While at the conclave I mentioned before, I was approached by a man who shared with me that in fact, he has some customers who are actually asking that their specific aircraft be maintained using the maintenance manual that was current when that aircraft received its original airworthiness certificate. I hope that as you are reading this, you understand just how ludicrous that is. I couldn’t believe my ears. I asked him three times to clarify. The real purpose of this article is to figure out how this sort of thinking is even an option, and to point out why it is absolutely ridiculous.
It all started when someone asked the wrong question of the wrong person. Today, we can receive the instructions to maintain an aircraft from many different sources (most through subscriptions, but not all). Manuals can come from the original equipment manufacturer either on paper, CD, or via the Web. There are also third-party vendors wthat have established resale license with the OEMs and, in some cases, have even taken on the entire responsibility to create and deliver the maintenance instructions to the maintainer.
Well, 14 CFR Part 91.409 provides four possible options for an inspection program to follow for a large or multi-turbine powered aircraft.
91.409 Inspections.
(f) Selection of inspection program under paragraph (e) of this section. The registered owner or operator of each airplane or turbine-powered rotorcraft described in paragraph (e) of this section must select, identify in the aircraft maintenance records, and use one of the following programs for the inspection of the aircraft:
(3) A current inspection program recommended by the manufacturer.
In addition, 14 CFR Part 43.13 requires that we use the current instructions provided by the manufacturer (or other methods acceptable to the Administrator), while performing any maintenance on an aircraft.
43.13 Performance rules (general).
(a) Each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller or appliance shall use the methods, techniques and practices prescribed in the current manufacturer’s maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques and practices acceptable to the Administrator,
Given so many possible sources for maintenance instructions, once a revision takes place, the maintainer who has Web access might have the most recent revision before the person who has a subscription to the paper version which can get sent out long after the Web was updated. The possibilities of when any particular maintainer might receive the OEM’s most recent revision is almost limitless in todays technology-rich environment. It depends on where you live, what subscription you have, who you have the subscription with and your particular company’s receiving process.
What does current mean?
Specifically, someone had a need to know an answer to the question as it pertained directly to 14 CFR Part 91.409 (f)(3), “The current inspection program recommended by the manufacturer”, and the question was asked by the FAA in Washington, specifically AFS-300, the head of Flight Standards, to the Assistant Chief Council for Regulations, AGC-200. The question was in the form of a request for legal interpretation dated Aug. 25, 2008. Here is the actual wording of the question directly from the FAA Memorandum, titled “Legal interpretation of 91.409(f)(3)” ,dated Dec. 5, 2008.
“You framed the issue as: “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).””
I don’t know exactly how all this came up in the first place, but I suspect that it went something like this: an operator was told by their FAA Inspector that they were not in compliance with the rule (91.409 (f)(3)) because they didn’t have the most current maintenance manual with the most current inspection program. I don’t know, and at this point it doesn’t matter, if the operator asking the question had purchased a subscription or not. I would assume that they had but were not using the fastest possible method to receive revisions from the OEM. In response to the accusation by the FAA safety inspector, the operator asked the inspector, “What does the rule mean by ‘current’, anyway?”
Obviously, the inspector didn’t know how to answer the question, so he pushed it uphill, through the FSDO managers and all the regional managers and all the way to FAA headquarters in Washington. Then even the head of Flight Standards didn’t know how to formulate a response, and they pushed it over to FAA legal council. This is where we actually know the facts about what occurred. Yes, the task of providing clarification of the meaning of the term “current” as it pertained to aircraft maintenance and inspection programs was placed in the hands of FAA legal council by the head of FAA aircraft flight standards, the country’s highest level of oversight for all aircraft maintenance.
the legal interpretation
I have a ton of respect for most attorneys. I have worked with many over the years and I know that you cannot function as a business without good legal council. However, here is a classic case of pass the monkey that simply went wrong. Legal council literally issued a definition that has little to do with aircraft maintenance. Most of you are aware of the details. You can find the Memorandum via Google searching for “Legal interpretation of 91.409(f)(3).” As I see it, FAA legal council didn’t know how to answer the question either, but had nowhere to pass it and made something up.
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 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” “as of the time he adopts it” (or when the owner first takes ownership position of the aircraft), and “that program remains current until the FAA mandates revision to it” through an “airworthiness directive or an amendment to the operating rules.”
Unfortunately, this legal interpretation has been introduced to industry and now it seems we are dealing with the consequences.
If you have a paid subscription to the maintenance instructions provided by the manufacturer and your process of receiving those instructions has been approved (if you are an Air Agency), then you are making a good-faith effort to obtain the latest revision from the OEM and using the most current instructions available to you. The thought of actually using the maintenance instructions or inspection program that was the most current revision when the aircraft owner actually first took ownership of that aircraft, or when it received its original airworthiness certificate (“When the owner adopts it”) is absolutely ridiculous and very likely can create an unsafe situation. Every OEM spends millions of dollars learning what works and doesn’t work as it pertains to the continued airworthiness of their product. To even think of ignoring that knowledge is just irresponsible.
Please, use common sense! Maintain your aircraft as the OEM would have you to do, in accordance with the most recent revision to their maintenance manual and instructions for continued airworthiness.
Joe Hertzler has more than 25 years of experience in business aviation. He has earned a reputation as an efficiency expert when it comes to aircraft maintenance and is well known for his in-depth understanding of maintenance regulations and how they affect aircraft compliance. He has helped many in dealing with critical and urgent FAA interactions and often speaks on the topic of aircraft maintenance and compliance at industry events, such as the NBAA Maintenance Managers Conference, PAMA meetings and IA renewal seminars. Hertzler also serves on the National Air Transportation Association’s (NATA) Maintenance and Systems Technology committee. Contact him at JoeHertzler@gmail.com.