FAA Clarifies Meaning of ‘Current’ for Mx Programs

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AskBob
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FAA Clarifies Meaning of ‘Current’ for Mx Programs

I just received this from the NBAA:

FAA Clarifies Meaning of ‘Current’ for Mx Programs

FAR 91.409(f)(3) requires aircraft owners and operators to maintain their aircraft in accordance with a “current inspection program recommended by the manufacturer.” In a recent legal interpretation, an FAA attorney stated that owners and operators are not legally obligated to adhere to the most recent updates to maintenance instructions or inspection programs, and only the maintenance requirements in place when the aircraft was built apply.
According to the interpretation, “New requirements could impose financial and other burdens on owners and operators of older aircraft that they did not bargain for. It would mean that our regulations effectively authorize manufacturers to issue ‘substantive rules’…that is, it would enable them to impose legal requirements on the public.” Eli Cotti, NBAA director of technical operations, said that this interpretation allows operators a lot of flexibility, but added, “most operators subscribe to an ever-evolving program for the benefit of safety, reliability and maintainability.”
Maintaining an aircraft to the latest standards also maximizes the value of the aircraft and the insurability of the operator, he said.

Here is the Legal Interpretation

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AskBob
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For those that are still interested in following this topic, here is an interesting response from ARSA to the FAA Memo we have been discussing sent to me by Adam.

When Current Is Past
In December 2008, the FAA's Office of Chief Counsel, Regulatory Compliance Division issued an interpretation of 14 CFR section 91.409(f)(3) that "a current inspection program recommended by the manufacturer" means the one that the registered owner chose at a point in time, not current as of "today". This has created confusion among maintenance providers as to which program they should be using on "current" inspections (those being done today). With the help of a member's law firm, Hogan & Hartson, L.L.P., ARSA requested guidance on exactly what program the maintenance provider should be using when the operator did not clearly "choose" one as required by 14 CFR section 91.409(f).

The December 2008 interpretation may be found here.

ARSA's request for guidance can be found here. (http://www.arsa.org/files/ARSA-91-409%28f%29%283%29122008Interpretation-...)

AskBob
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I would not be surprised to see more information on the subject coming from the FAA. We have been asked by a customer if it was now OK to stop their revision service. I would urge customers to be cautious before dropping a revision service. Revision services are typically cheaper than starting a new subscription so a hasty change could be very expensive. I would also recommend you chat with your local FSDO for the latest feedback on maintenance requirements. Most importantly you should consider the safety of and resale value of an aircraft not maintained to the latest recommendations of the OEM.

AskBob
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DOM Magazine has a good article on page 12 of the May 6 2009 issue on this subject and legal issues around it.
http://www.readoz.com/publication/read?i=1015410

AskBob
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What Does “CURRENT” Mean
To You ?
This subject is covered in the latest release of the
Nuts and Bolts Newsletter.
Follow the link
https://www.faasafety.gov/files/notices/2009/Jul/Nuts_and_Bolts,_Issue_0...

Mike's summary says it all:
So, contrary to the rumor mill, the December
memo does not apply to you if you are exercising
the privileges of your mechanic certificate or if
you are a repair station. Think about it like this,
the memo only mentions Part 91 (General Operating
and Flight Rules), we (maintenance folks), are
bound to the rules in Part 43, (Maintenance, Preventative
Maintenance and Rebuilding, and Alteration).
Section 43.13(a) states in part: 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.
CONCLUSION: If you think you don’t have to
have current maintenance manuals to work on
aircraft I have a bridge I’d like to sell you.

AskBob
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See InFO 09008 Information for Operators about the use of current inspection programs as mandated by § 91.409(f)(3) at http://www.askbob.aero/node/484

AskBob
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See the latest Legal Interpretation on this subject http://www.askbob.aero/content/legal-interpretation-whether-supplemental...

Anonymous (not verified)
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Mike,

Please read FAA Memorandum dated Aug 13, 2010;

Legal Interpretation of "Current" as it Applies to Maintenance Manuals and Other Documents Referenced in 14 C.F.R. §§ 43. 13(a) and 145.109(d).

It states in the second paragraph of the Aug 13, 2010 Memorandum “(We also stated: "The legal conclusions below are equally pertinent to either type of document--current maintenance instructions or current inspection program.")” As to make it clear that this has already been explained.

Read paragraph three very carefully. It reaffirms the statements contained in the previous Memorandum dated Dec 5, 2008 and with specific regard to FAR 43.13(a).

Notice that in the Dec 5, 2008 Memorandum it was stated that “The legal conclusions below are equally pertinent to either type of document---current maintenance instructions, or…” Is the phrase “current maintenance instructions” contained anywhere in the FARs other than 43.13?
It is certainly NOT contained in FAR 91.409(f).

AND those same legal conclusions described state; “(in which case the "current" obligation is fulfilled at the point in time of the aircraft delivery once and for all)”. That pretty much says it all.

Below is paragraph three from FAA Memorandum dated Aug 13, 2010

“While § 91.409(f) applies to aircraft operators and dictates which inspection program they must select, § 43. 13(a) applies to persons performing maintenance and sets forth performance rules those persons must follow. In pertinent part, § 43.13(a) states: "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 [ICA] prepared by its
manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in § 43.16." If a person uses the manufacturer's maintenance manual or ICA
when performing aircraft maintenance, that person could use the most current version of the manual or ICA or, in many cases, a prior version (including one that was current at the date of
manufacture) and not run afoul of the regulation. This is so because of the flexibility provided in the regulation. For example, § 43. 13(a) provides that the person performing maintenance
shall use the current manufacturer's maintenance manual or Instructions for Continued Airworthiness [ICA], "or other methods, techniques, and practices acceptable to the
Administrator .... " (Emphasis added.) Thus, in a case in which a maintenance person is alleged to have violated that regulation because he or she used a "prior" version of the manual or
ICA, the FAA would have to show how it was unacceptable for the person to have used that "prior" version. If the FAA could not show how the prior version is now unacceptable, the FAA could not prove the violation. For example, if the FAA had changed or invalidated the "prior" version by a rule, its use would not be acceptable, and the FAA should be able to prove the violation.”

So…as long as the maintenance manuals have not been invalidated by a rule (such as an AD) they remain acceptable.

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