Lawfully Operating An “Unairworthy” Aircraft

          The Board of the NTSB recently reversed the ruling of NTSB Chief Administrative Law Judge William E. Fowler, Jr. and reconfirmed that a pilot owner may lawfully operate an aircraft that has an unairworthy component IF the required procedures are followed and the appropriate documentation is properly made. (Blakey, Adm. v. Yialamas, Docket SE-16494, NTSB Order EA-5111, dtd., September 21, 2004).

          The malfunctioning autopilot and “frayed” cable was not a Type Certificated required component and it was not on the Minimum Equipment List (MEL) set out in the Aircraft Flight Manual (AFM), per FAR 91.213(b). It was disabled, deactivated and made “inoperable” by a properly FAA certificated Airframe and Powerplant (A&P) mechanic, per 91.213(d)(3)(ii). The equipment was then placarded “INOPERABLE,” per FAR 43.11(b) and 91.213(d). Then a maintenance entry was properly made in the airframe logbook per FAR 43.9 and 43.11(a). The aircraft was signed off and Returned to Service (RTSed) by an A&P, per FAR 43.9(a)(4). The owner, a licensed pilot, next ‘test flew’ the aircraft, determined that the deactivated equipment had no negative effect on its operation and RTSed the aircraft with the appropriate pilot log entry, per FAR 43.7(f)and 91.213(d)(4). The aircraft, complete with its “unairworthy” component, was thus “considered to be in a properly altered condition acceptable to the administrator.” FAR 91.213(d)(4) paragraph 2.

          The aircraft was then flown to several successive avionics Certified Repair Stations (C.R.S.), per 43.3(e), while the owner “shopped” to obtain competitive prices on the repair.

Then, somebody “dropped a dime” on the operator, and tried to build a fire under the FSDO to “do something” about this “unairworthy aircraft.” The FAA went ballistic: a not-so sharp inspector in the Allentown FSDO responded, apparently unfamiliar with FAR 91.213(d) and Part 43, and he took strong issue with the owner/operator. He assertively claimed that the aircraft “was not airworthy” (which, technically, was true enough, but it was not in violation of the FARs). He felt that the only way it could be flown lawfully with an unairworthy component was strictly with a one-time, point-to-point “Ferry Permit” (aka a “Special Airworthiness Certificate,” per FAR 21.97). The FAA cited the owner/operator with a violation of 14 CFR 91.7(a), 91.405(a) and 91.13(a) and sought a severe 180 day suspension of the Airman’s Certificate against the hapless owner/operator. The Allentown FSDO had apparently never heard of 91.213(d). To them, any aircraft without “all 100% of its components being fully airworthy” was per se unairworthy and a violation of the FARs. They denied the applicability of 91.213(d) to the autopilot, despite the fact that it wasn’t a necessary component for the operation of day, VFR flight, and they pressed on with an Enforcement Action. At the request Informal Conference, counsel for the FAA didn’t get it either, apparently, and he thereafter issued a formal Notice of Suspension. This resulted in a timely appeal for a full hearing to the NTSB ALJ. Chief ALJ Fowler endorsed the FAA’s view, and an Order of Suspension resulted. However, in an appeal of the matter to the Board of the NTSB, the Board got it right! Happily, unlike the FAA and Judge Fowler, the Board understood the proper application of 91.213(d). Just like flying an “unairworthy” aircraft under a one-time, point to point “Ferry Permit” per FAR 21.197, it is perfectly permissible under the FARs to operate an aircraft with unairworthy components if the proper procedures are followed and the appropriate documentation has been entered. That was exactly what the Board ruled had happened.

          However, unlike a one-time, point-point “Ferry Permit,” the aircraft with a properly documented nonessential unairworthy component, which has been made “inoperable,” properly placarded and the appropriate log book entry made, can be flown and operated repeatedly in that condition, even though the aircraft is technically “unairworthy,” and this is expressly permitted by the FARs.

          It is less certain how long it can be flown in that condition: The FARs are silent on the point. The component and the entire aircraft should arguably be repaired to full “airworthiness” status at the next required inspection and the RTS sign-off an indication of full airworthiness. However the point is arguable. It appears that at the next required inspection the “inoperable” condition could again by extended by a new, identical logbook entry, the placard kept in place, and the deficiency re-noted in the logbook, with a required written notice to the owner/operator per FAR 43.11(a) and (b). Thereafter, RTS sign off would have to again be made with the 91.213(d) and 43.11(b) limitations noted.

        Despite the fact this permissible procedure is clearly authorized under the FARs, it apparently makes the FAA crazy. Many under-informed FAA inspectors either don’t know how the rule works – or don’t like it – so the uninformed choose to ignore it. This willful and inexcusable ignorance cost this particular airman about $15,000-$20,000 in order to obtain vindication. Happily, that amount was awarded via the Equal Access to Justice Act (EAJA) action, reimbursing the airman for the FAA’s unfortunate lack of familiarity with the FARs.

          So, it is perfectly permissible to operate a technically “unairworthy” aircraft if it is done so under one of several recognized exceptions permitted by the FARs.