The FAA is an agency of the United States Department of Transportation formed in August 1958.
It is responsible for the regulation and oversight of civil aviation within the U.S., as well as operation and development of the National Airspace System. Its primary mission is to ensure the safety of civil aviation.
As part of its mission, the FAA’s major responsibilities include:
- Regulating civil aviation to promote safety
- Encouraging and developing civil aeronautics, including new aviation technology
- Developing and operating a system of air traffic control and navigation for both civil and military aircraft
- Researching and developing the National Airspace System and civil aeronautics
- Developing and carrying out programs to control aircraft noise and other environmental effects of civil aviation
- Regulating U.S. commercial space transportation
BUREAUCRACY PAR EXCELLENCE
Even with the FAA’s stated Mission of encouraging and developing civil aeronautics, including new aviation technology; the rules governing FAA compliance, especially with respect to an aircraft’s maintenance history, are anything but new. Still guided by the insight and knowledge we had available to us when the agency was formed, the rules for aircraft maintenance records have gone from practical, to problematic, to archaic, to almost completely dysfunctional in the decades which have followed.
According to FAR 91.417, for a maintenance record to be a binding document in support of the airworthiness of the aircraft it must contain the following:
- A description of the work performed
- The date of completion of the work performed
- The signature, and certificate number of the person approving the aircraft for return to service
That seems clear enough. But it isn’t. Most FAA inspectors and Flight Standards District Offices in general have repeatably been advised by FAA legal that there is precedent in the US Court system that only original copies of this and FAR 43 documentation proving an aircraft’s Airworthiness have been consistently accepted in a court of law. This, of course, has caused quite a bit of consternation among both the FAA and industry lately.
So, what exactly is an original copy? When FAR guidelines were established decades ago, a copy was obvious. Since there were no copy machines, no personal computers, no high-quality multi-color printers, and no digital imagery; copies were only made by one method: by using copy paper. A copy was easily discernable because the copy was often discolored due to the copy ink of the paper, severely lacking in any kind of detail that would distinguish it as a bona fide original, and often smudged from handling the original and copy paper together.
But that world is now in the rearview mirror. Today’s world allows us to use any number of different means and/or software programs to first create, then print a document. So, is an original just a printed piece of paper created with the use of a computer? How about if the document is first digitally signed and then printed?
This, of course, is the very essence of what the FAA and the business aviation community are struggling with. In an attempt to exercise some-kind of control over this brave new world, the FAA issued Advisory Circular AC120-78 in 2003. But, of course, as the decade marched on the FAA began to realize that the technology it envisioned in 2003 had morphed in sophistication to the point where it required the FAA to cancel and revise the Advisory Circular to be more on-point with modern software features. So, in 2016 the FAA did just that; they canceled AC120-78 and issued AC120-78A.
But it seems, AC120-78A has created as many problems as it has tried to solve. Advisory Circulars, like any “guidance” is not necessarily a set of rules that can be used to judge whether the operator is adhering to the FARs or not. It is simply a set of guidelines to follow if your desire is to stay compliant to FAA recommendations.
In other words, you can follow an Advisory Circular to the letter, but that doesn’t mean the local FAA FSDO needs to accept them as a normal way of your company’s operation of its aircraft.
ACCEPTED VS APPROVED
There is a significant difference between “Accepted” and “Approved” within the FAA. And this difference makes all the difference when it comes to executing a new procedure or process in your operation.
According to U.S. Transportation Order 8900.1:
“Acceptable” to the FAA means that the procedure must be submitted to the FAA with reference to some standard or publication (AC120-78A for example) as the basis for the intended application. The standard or publication used should be an accepted industry practice and the person using it should be able to articulate a clear and reasonable basis for its use. When a regulation requires that a submission must be found “acceptable” to the FAA, the FAA may exercise discretion in issuing the authorization.
“Approved”, on the other hand, means that the procedure has been previously approved by the FAA, is registered in the FARs as a “regulation”, and cannot be denied if the applicant meets all the parameters of the regulation. In other words, the decision has already been made by the FAA and is a rule that must be followed by the FAA Airworthiness Inspector issuing the authorization.
Herein lies the conundrum. Although an operator has elected to follow an Advisory Circular to the letter in order to make it easier for a local FDSO’s Inspector to “accept” the procedure; it, unfortunately does not guarantee that every FSDO will accept this procedure as valid. Again, it is up to the FSDO’s “discretion”. This puts both the inspector at the local FSDO at risk of misinterpretation of the established guideline (according to other FAA FSDOs), and the operator at risk of having one FDSO accept this procedure, only to have another FSDO decide the procedure is “not acceptable” and invalid. This scenario could potentially place an operator in a “violation” position when they are using the procedure to perform business in different FAA jurisdictions (as airplanes usually do).
THE BOTTOM LINE
This conundrum has led our industry to a point of paralysis. But, clearly as an industry, we can do better than just throwing-up our hands and accepting this as our destiny. In fact, we must to do better! WE now operate aircraft that fly faster, travel further, and operate more efficiently than ever before.
The technology we use to accomplish this is state-of-the-art. So why are we allowing the critically important maintenance history and airworthiness records of these amazing aircraft to be treated the same as we did over one-alf century ago, despite the technological advancements that have been made these methods practically obsolete?
We didn’t wait for the FAA to make a ruling allowing us to build pressurized aircraft, nor did we wait for Weather Radar or Electronic Flight Instruments to become a rule before we incorporated these technologies in our aircraft. So why are we continuing to wait for the FAA to make a rule to allow us to use electronic recordkeeping and digital signatures?
And, where do we go from here? The following are a few suggestions of what we could, and should, as an industry, do to bring the 21st century system of electronic recordkeeping into our daily operations:
- Scan your existing paper records into electronic images in order to have both a back-up of the paper record, and to begin the important process of converting the world of aircraft recordkeeping from paper to electronic.
- Begin an electronic recordkeeping system containing the same information that you are currently keeping in your paper system. Since a paper system is still the accepted “norm”, run both systems in parallel (the time and manpower it takes to do this will be more than made-up by the efficiencies that the electronic recordkeeping system adds to our operation).
- Start using a DigitalSignature program to sign documents that do not require FAA approval to use. (Digital Signature programs are readily available from several different sources you can find on the internet).
- Write your congressman to insist that congress investigate passing new laws that will allow regulators to add language to the FARs that include electronic recordkeeping and digital signatures.
The first step is always the hardest … and the most critical. As an operator of the most sophisticated business aircraft in the world, we need to take this first step. The aircraft we operate, and the people operating these aircraft will all benefit. It’s imperative we act now to bring all of business aviation into the 21st century!