Who decides whether or not your aircraft is airworthy?
By Mike Busch
My column in the May 2015 issue of EAA Sport Aviation, titled “Fix It Now…Or Fix It Later,” discussed how to deal with mechanical problems on the road. It offered some specific advice about how pilots and aircraft owners can decide whether a particular aircraft issue needs to be addressed before further flight or whether it can safely wait until the aircraft gets back home. I considered the advice I offered in this article to be non-controversial and commonsensical, so I was quite surprised when I received an angry 700-word email from a very experienced A&P/IA condemning my article and accusing me of advising owners to act irresponsibly and violate various FARs.
The author of this strongly-worded censure—I’ll call him “Damian” (not his real name)—is someone I’ve known for some years. Damian is a regional field service manager for a leading GA aircraft manufacturer, but he made it clear that the views he expressed in denouncing my article were his own and not those of his employer. It has long been clear to me that Damian doesn’t think much of my opinions about GA maintenance, and that I often disagree with his. And that’s okay.
However, I think it’s important to understand where Damian is coming from, because his viewpoint is one that is shared by many of his colleagues in the GA maintenance field. That viewpoint differs pivotally in many crucial respects from the one I have espoused throughout my aviation career. Therefore, I am going to offer you Damian’s forceful condemnation of my column essentially verbatim, and then explain why I believe he’s got it wrong.
Damian’s Condemnation
After reading Mike Busch’s commentary “Fix It Now…Or Fix It Later,” I must take exception to most if not all the points made in his column. I believe his statements are misleading as to the operation of certified aircraft, to the point of being irresponsible for a A&P to suggest or imply that it’s up to the owner/operator whether or not to fly an aircraft with a known discrepancy. The FARs are quite clear on this matter, and there have been numerous certificate action levied on pilots who have operated aircraft with known discrepancies.
FAR 91.7 states “(a) No person may operate a civil aircraft unless it is in an airworthy condition; (b) The pilot in command of a civil aircraft is responsible for determining whether that aircraft is in condition for safe flight. The pilot in command shall discontinue the flight when unairworthy mechanical, electrical, or structural conditions occur.”
Once a discrepancy is identified, prior to further flight, the discrepancy must be approved for return to service by persons authorized under FAR 43.7 (typically the holder of a mechanic certificate). The owner/operator may only approve for return to service those items listed in FAR Part 43 Appendix A. In all cases involving repairs or maintenance, a logbook entry clearing the discrepancy must be completed before further flight. It should also be noted that the FAA does not take into consideration the inconvenience or cost related to addressing a known discrepancy. Nor is it up to the owner/operator to determine the significance of a discrepancy as the FARs do not confer this discretion privilege to the owner/operator
Busch’s commentary concludes by stating
“Once you’re confident that you know exactly what’s wrong, decide whether it’s safe to fly home with the problem or whether it needs to be fixed now.” WRONG! This advice is in violation with the FARs and subjects the pilot to certificate action. If it’s a discrepancy, then it MUST be fixed before further flight, or a special flight permit must be issued.
“Before deciding to defer maintenance, ask yourself if you’re confident that your deferrable problem won’t get worse before you get home.” WRONG! This statement is also violation of the FARs. With the exception of certain cases involving non-required equipment per the MEL or other special conditions, it is NOT within the authority of the pilot to assess the significance of an airworthiness discrepancy. ANY discrepancy NO MATTER HOW MINOR is the standard.
“Consider making a temporary quick fix that will get you home safely, then doing a proper repair at home base.” WRONG! Unless the pilot holds a mechanic certificate and makes an appropriate logbook entry, the pilot is not authorized by definition to make repairs. The 32 items listed per Part 43 appendix A are maintenance items and are not considered repairs. Any repair must be performed in accordance with approved data, and I am not aware of any approved data that addresses “temporary repairs” that do not involve a special flight permit.
“For an intermittent problem that isn’t a safety-of-flight issue, the wisest course is often to be patient and let it get worse.” WRONG! An intermittent discrepancy is still a discrepancy. Also, it is very presumptuous that a pilot dealing with an intermittent issue can assess the risk, and certainly could be subjected to certificate action should the pilot wind up making a forced landing or worse!
I hope that others in the aviation community such as FAA ASIs and aviation legal professionals weigh in on this commentary. I believe all will agree that this commentary is misleading and uninformed to the point of being irresponsible even to publish. At the very least, pilots that follows the advice of Busch’s commentary should enroll in the Pilot Protection Services plan offered by AOPA, because they’re likely to need it!
Whew! Strong stuff! If Damian is right, then the FAA had better lock me up and throw away the key. Fortunately for me, I believe he isn’t and (at least so far) they haven’t.
Where Damian Has It Wrong
Damian and I do agree on at least one thing: FAR 91.7 does indeed say that it is a violation to fly an unairworthy aircraft, and that if the aircraft becomes unairworthy in flight the PIC is obligated to discontinue the flight. No question about that. I would never suggest for a moment that any pilot fly a known-unairworthy aircraft, at least without a ferry permit. That’s a no-brainer.
The much more difficult question is: Exactly how does the PIC decide whether or not an aircraft is airworthy or unairworthy, and therefore whether he is or isn’t allowed to fly it. On this question, Damian’s view and mine seem to be 180 degrees out of phase.
Damian’s denunciation makes it apparent that he believes that almost any aircraft discrepancy requires the involvement of an A&P mechanic to clear the discrepancy and approve the aircraft for return to service. I see absolutely nothing in the FARs to support such a position, particularly when it comes to non-commercial aircraft operated under Part 91.
Why do I say that? To begin with, the basic airworthiness rule (FAR 91.7) clearly states that the PIC is responsible for determining whether the aircraft is in condition for safe flight. It doesn’t say anything about A&Ps or repair stations having to be involved in that determination.
Looking a bit deeper into the regs, I can find only three circumstances under which a mechanic is required to get involved in making airworthiness determinations on a Part 91 aircraft used for non-commercial purposes. The first occurs once a year when FAR 91.409 requires that an annual inspection be performed; the other 364 days of the year, it’s the PIC who determines whether the aircraft is airworthy, both before and during every flight. The second occurs when an Airworthiness Directive or Airworthiness Limitation becomes due, when per FAR 91.403 a mechanic must certify that the AD or AL has been complied with (with rare exceptions where the PIC may do so). The third occurs when an owner or operator actually hires a mechanic to perform maintenance on an aircraft, in which case the mechanic is required to document his work and sign it off to testify that the work was performed properly (but NOT that the aircraft is airworthy). Under no other circumstances can I find any regulatory requirement that a mechanic be involved in determining the airworthiness of an aircraft or any part of it.
So if you’re on a trip and some aircraft discrepancy occurs—assuming the aircraft isn’t in the midst of its annual inspection and there’s no AD involved—it is up to the PIC to determine whether or not that discrepancy makes the aircraft unairworthy or not. If the PIC decides that it does, then he can’t fly the airplane until the airworthiness issue is rectified (and that might or might not require an A&P). If the PIC decides that the discrepancy doesn’t rise to the level of making the aircraft unairworthy, then he’s free to fly home and deal with the issue later. Under the FARs, it’s totally the PIC’s call. There’s no regulatory obligation for the PIC to consult a mechanic when making such airworthiness determinations, although that would certainly be a wise thing to do if the PIC feels uncomfortable about making the decision himself.
The FARs provide considerable help to the PIC in making such airworthiness determinations. For example, FAR 91.213(d) provides a moderately complex algorithm for deciding whether or not it’s okay to fly an airplane with various items of inoperative equipment. 91.207 says that it’s okay to fly an aircraft with an inoperative ELT to a place where it can be repaired or replaced, no ferry permit required. 91.209 says that position lights needn’t be working if you’re flying during daylight hours. And so on.
If your experience is anything like mine, what most of us call “squawks” (and Damien calls “discrepancies”) are common occurrences, but the majority of them don’t rise to the level of being airworthiness items that cause us (in our capacity as PIC) to conclude that a fix is required before further flight. Even if you do encounter a genuine airworthiness problem—say a flat tire or dead battery or bad mag drop—that still doesn’t mean that you necessarily need to get a mechanic involved. The FARs provide a list of roughly three dozen items that a pilot-rated owner or operator is permitted to perform and sign off on his own recognizance (without getting an A&P involved). And contrary to Damien’s assertion, many of these so-called “preventive maintenance” items are in fact repairs. In fact, many include the word “repair” or “replace” right in their definition.
If you have a flat tire, for example, you (as a pilot-rated owner or operator) are permitted to repair or replace it yourself. If you have a dead battery, you can charge it, service it, or even replace it yourself. If you have a bad mag drop, the most common cause is a defective or fouled spark plug, and you’re permitted to remove, clean, gap, and replace spark plugs yourself. You are also allowed to make repairs and patches to fairings, cowlings, fabric (on fabric-covered aircraft), upholstery and interior furnishings. You can replace side windows, seat belts, hoses, fuel lines, landing and position lamps, filters, seats, safety wire, cotter pins, and more. You can even remove and install tray-mounted avionics from your panel. For Damien to suggest that these do-it-yourself items aren’t “repairs” is just wordplay.
Now, you might well prefer to hire an A&P to do some of these things rather than do them yourself (especially when on the road, far from your hangar and toolbox). I know I certainly would, and I’m an A&P myself. But Damian’s contention that you are compelled by the FARs to place your aircraft in the hands of an A&P any time any sort of discrepancy arises is just plain wrong.
Finally, I must address Daman’s statement that “[a]ny repair must be performed in accordance with approved data, and I am not aware of any approved data that addresses ‘temporary repairs’ that do not involve a special flight permit.” That’s just plain silly on both counts. First of all, very few repairs are required to be performed in accordance with approved data. Only major repairs (requiring an FAA Form 337) require approved data; the vast majority of repairs require only “acceptable data” that need not be approved by anyone. Second, there are lots of “temporary repairs” that are acceptable to the FAA and often are even FAA-approved. For example, I once had one of the windows on my Cessna 310 develop a large crack while on a trip to the Cayman Islands. I performed a temporary “battlefield repair” of the cracked window by drilling a series of small holes on each side of the crack and then lacing it together using stainless steel safety wire, a temporary repair technique explicitly authorized by Advisory Circular AC43.13-1B. The resulting repair was ugly as sin, but it held until I got the airplane back home to California, at which point I replaced the cracked window with a new one. It was all done in meticulous compliance with FAA guidance. Sorry, Damian.
In summary, Damian’s view seems to be that pilots are merely appliance operators, and mechanics are God when it comes to deciding whether or not an aircraft is airworthy. My view is that the FARs place those decisions squarely on the shoulders of owners and pilots, except once a year when they require an IA to weigh in by performing an annual inspection. What’s your view?
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