If you own or operate a large airplane (over 12,500 MTOW and to which FAR Part 125 is not applicable), turbojet multiengine airplanes, turbopropeller-powered multiengine airplanes, or turbine-powered rotorcraft, you know that FAR § 91.409(f) requires you have an FAA approved maintenance/inspection program in place for your aircraft. One option for complying with this requirement is to use a “current inspection program recommended by the manufacturer.” In the past, that option had been interpreted to mean that, when a manufacturer updates its maintenance instructions, the aircraft operator is obliged to comply with the new instructions.
That interpretation was questioned when the FAA’s Aircraft Maintenance Division requested a legal interpretation from the FAA’s Office of Chief Counsel regarding the meaning and application of FAR § 91.409(f)(3). The specific issue that the Chief Counsel was asked to address was: “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).”
The FAA Chief Counsel issued a December 5, 2008 Legal Interpretation addressing this issue. It concluded that an operator is not required to comply with either “current”/”new” maintenance instructions or a “current”/”new” inspection program.
The FAA’s Perspective
The Legal Interpretation initially observed that a similar issue had previously been raised, but not answered, regarding whether FAR § 91.9(a), required an operator to comply with a change to an operating limitation in an airplane flight manual if the change had not been made through the notice and comment procedures of 5 U.S.C. 500 et. seq., the Administrative Procedures Act (“APA”). It then concluded that an operator was not obligated to comply for the same reason that an operator is not required to comply with “current”, or subsequently issued, changes to maintenance manuals or inspection programs.
According to the Legal Interpretation, “[i]f ‘current’ in § 91.409(f)(3) and similarly worded regulations could be read to mean an ongoing obligation, manufacturers unilaterally could impose regulatory burdens on individuals through changes to their inspection programs or maintenance manuals. In essence, they would be making rules that members of the public affected by the change would have to follow.” However, the FAA does not have the authority to delegate its ability to make rules. Additionally, allowing a manufacturer to issue rules in the form of maintenance instructions or inspection programs, without public notice and comment, would be contrary to the APA.
As a result, the Legal Interpretation concluded that “to comply with § 91.409(f)(3) an operator need only adopt a manufacturer’s inspection program that is ‘current’ as of the time he adopts it, and that program remains ‘current’ unless the FAA mandates revisions to it.” For example, revisions would be required if the FAA issued an applicable airworthiness directive or amended the operating rules applicable to the operator.
Finally, the Legal Interpretation noted that, although not required, operators could, and typically do, incorporate subsequent changes issued by manufacturers. It also suggested that the FAA should initiate a rulemaking change to clarify the meaning of § 91.409(f)(3), and associated regulations, to remove the ambiguity associated with the term “current”.
The Litigation Perspective
This Legal Interpretation clarifies that FAR § 91.409(f)(3) does not require compliance with subsequently issued changes to maintenance manuals or inspection programs, absent an airworthiness directive or other regulatory requirement. Thus, from a regulatory perspective, compliance is not mandatory. Yet, simply because the FARs do not specifically require an operator to comply with subsequently issued changes to maintenance manuals or inspection programs, does this mean an aircraft owner or operator can ignore these changes?
We know now that an FAR Part 91 aircraft operator will not invoke the wrath of the FAA if the operator does not comply with subsequently issued changes to maintenance manuals or inspection programs (unless, of course, an airworthiness directive or other regulatory requirement mandates compliance). However, before “current” changes are ignored or rejected, compliance must also be evaluated from a tort perspective in order to accurately assess the risks of non-compliance.
Under tort law, and specifically the law of negligence, we all have a duty to use reasonable care. The standard of care is established by determining what a reasonable person would do under a set of given circumstances. In recent years, plaintiffs in aircraft crash cases have been using subsequently issued changes to maintenance manuals or inspection programs to establish the standard of care with respect to aircraft ownership, operation and maintenance.
Specifically, in a post-aircraft accident scenario, plaintiffs’ experts will scour the aircraft’s logbooks in an attempt to identify subsequently issued changes with which the aircraft owner, operator, or maintenance provider has not complied. They then try and argue a causal connection between that lack of compliance and the aircraft accident.
At trial, the plaintiffs argue that the manufacturer issues the changes because it believes compliance will make the aircraft or its components safer and that compliance with the “current” change’s recommendations, issued by the manufacturer who should know best, establishes the duty owed by the aircraft owner, operator or maintenance provider. They will direct attention to the “mandatory” nature of the issued changes, so designated by the manufacturer. Plaintiffs will also argue that deferred or rejected compliance improperly placed financial savings over safety.
In response, the defense will argue that the aircraft is still safe without compliance with the changes, pointing out that the changes are not issued by the agency responsible for safety and certification of aircraft and aircraft components. After all, unless the FAA has issued an airworthiness directive based upon the manufacturer’s changes or otherwise mandated compliance under some other operating rule; the FAA apparently does not deem the manufacturer’s recommendations to be necessary or mandatory to protect the public’s interest in aviation safety. So why should the aircraft owner, operator, or maintenance provider comply when the FAA doesn’t think it is necessary or mandatory? And why should the owner or operator spend additional money for parts or maintenance that may or may not actually make the aircraft safer?
All of these arguments are made to, and allowed by, the courts, in spite of the fact that compliance with the subsequently issued changes is not mandated by FAR § 91.409(f)(3). Additionally, juries have heard evidence regarding the absence of compliance and returned verdicts in favor of plaintiffs based upon that evidence. The higher standard of care argued in the tort context has yet to be pre-empted by the regulatory standard of care established by the FARs.
What Should You Do?
So how should an aircraft owner or operator deal with subsequently issued changes to maintenance instructions or an inspection program? First, you will need to be aware of applicable changes to the manufacturer’s maintenance instructions or inspection program and to discuss the information with the aircraft owner and/or operator. This means making sure that you are aware of all applicable changes issued by the manufacturer.
Next, you need to specifically identify, in writing, the maintenance instructions or inspection program that have been adopted for your aircraft: Is it current as of the date the aircraft’s type certificate was issued or is it current as of some later date? Unfortunately, the Legal Interpretation doesn’t provide any guidance in this regard. This is necessary to later prove the version of instructions or program with which you complied.
The Legal Interpretation appears to raise more questions than it answers. And, unfortunately, these questions will only be answered by further legal interpretations or by changes to the regulations. In the meantime, you need to be aware of the regulatory requirements of compliance, to the extent that it is possible given the existing confusion. You will also need to understand the costs and benefits of compliance from a tort perspective. Only then can you make an informed decision as to how the regulations apply and what you should do with “current” maintenance instructions.
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