In a September 3 letter of interpretation, the FAA clarified that the term “in person” in Part 43 maintenance regulations means that remote supervision of aircraft maintenance is forbidden. This could have a profound effect on the aviation maintenance industry because the letter essentially supports a requirement that a supervising mechanic must watch every move made by a non-licensed individual performing maintenance.
A request for reconsideration was submitted to the FAA on September 24, citing “irreparable harm” that the interpretation will cause to MRO facilities that employ non-certificated mechanic trainees or apprentices.
The request for interpretation was submitted by Jonathan Moss, manager of the FAA’s Flight Standards District Office in Little Rock, Arkansas. Moss asked “whether a supervisor must be physically present at the site of the maintenance, or if he may supervise remotely, through Zoom, FaceTime, live feed TV, photographs, downloadable video, or other electronic means. Assuming remote supervision is allowed, [he] then asked if the supervising mechanic would be allowed to provide the documentation for return to service electronically.”
The applicable regulation is FAR 43.3(d): “A person working under the supervision of a holder of a mechanic or repairman certificate may perform the maintenance, preventive maintenance, and alterations that his supervisor is authorized to perform, if the supervisor personally observes the work being done to the extent necessary to ensure that it is being done properly and if the supervisor is readily available, in person, for consultation.”
According to the FAA letter, “The Office of the Chief Counsel finds that the phrase ‘in person’ explicitly requires physical presence. Virtual presence, through a live video feed or other technological means, cannot replace the physical presence of a supervising mechanic. The term ‘in person’ is typically used to distinguish physical presence from mere virtual or remote presence, e.g. ‘Are we meeting in person today?’ Interpreting 43.3(d) to allow supervision by Zoom or FaceTime would render the phrase ‘in person’ redundant, but all parts of binding legal text must be given effect.”
Citing previous rulings, the FAA letter concluded: “In other words, mechanics must be able to physically intervene at every step of the process.” Thus, “A live video feed does not allow for this level of supervision. A remote supervisor cannot take over maintenance and can only see what the camera is pointed at. Anything out of frame will go unnoticed by even the most experienced mechanic.
“In the best-case scenario, a remotely supervising mechanic would be available for questions at any time and could remotely observe most steps of the work, but crucial details might remain out of frame and the supervisor would have no power to step in if necessary. That best-case scenario still would not be enough under 43.3(d).”
Because the use of remote supervision is not allowed, according to the FAA, the question of providing return-to-service documentation electronically isn’t applicable to this situation and therefore isn’t addressed in the letter of interpretation.
In the request for reconsideration, Mike Busch, an A&P mechanic with inspection authorization and president of maintenance consultancy Savvy Aviation, and other signers of the letter pointed out what they feel are flaws in the FAA’s reasoning in the letter of interpretation.
The conditions in the Part 43 regulation require, he explained, “proactive supervision by the supervisor in order to ensure that the work is being done properly, while the second condition addresses the supervisor’s reactive availability in the event that the person being supervised needs to consult with the supervisor in the course of doing the work.
“For the past 60 years, certificated mechanics who supervise uncertificated apprentices (including we, the undersigned) have universally understood the condition (a) phrase ‘personally observes the work’ to mean that the proactive obligation of the supervisor could not be delegated to anyone else, and the condition (a) phrase ‘to the extent necessary to ensure that it is being done properly’ as giving the supervisor broad discretion to determine precisely how much supervision is necessary, and what phases of the work require supervisorial scrutiny.
“The condition (a) phrase ‘personally observes’ has never been understood to require a specific time duration of physical proximity on the part of the supervisor. Rather, it has been universally understood that the supervisor has broad discretion over both the timing and duration of supervisorial observation of the work and the physical proximity necessary to ensure the work is being done properly.”
In any case, he added, the supervisor has an incentive to ensure the work is done properly because the supervisor is the one signing off the work and approving it for return to service. “Indeed, it is the supervisor who will be held responsible for any adverse consequences if the work was not performed properly, both in terms of possible FAA certificate action and potential damages for civil negligence.”
The maintenance industry has long understood the regulation’s “readily available, in person, for consultation” phrase to mean that an apprentice could ask a question or assistance and that the supervisor must be readily available. “The words ‘readily available’ have never been understood to mean ‘instantly available’ or ‘continuously available.’
“Such consultation can frequently be handled satisfactorily via phone call or text message (e.g., ‘should I apply sealant to the cylinder base O-ring?’), but there are certainly times when the supervisor’s physical presence is necessary (e.g., ‘hey boss, I think you’d better have a look at the threads on this through-bolt before I continue’), in which a supervisor’s physical availability response time measured in minutes or perhaps hours would be considered to meet the ‘readily available, in person’ requirement of condition (b). Again, the supervisor typically has a strong incentive to be reasonably available in the event the apprentice feels the need for either remote or in-person consultation in order that the apprentice’s progress and the facility workflow is not unnecessarily disrupted.
“We believe this to be an unfortunately conservative and regressive interpretation of the meaning of ‘personally observe’ and probably not what the original authors of this rule would have intended the phrase to mean had they been able to foresee that 60 years in the future virtually every adult human would be carrying a high-definition camera that was able to instantly transmit still and video images to any other adult human on the planet at the speed of light. We think the rule authors intended the phrase ‘personally observe’ to denote that the supervisor may not delegate his obligation to observe the work being performed, not to dictate any particular methodology of observing the work.”
The request for reconsideration points out that in modern life, remote activity is common, from remote robotic surgery to telemedicine and warfare, as well as in ordinary work situations, which include many FAA personnel working remotely. Sarah MacLeod, executive director of the Aeronautical Repair Station Association, explained that the FAA has already supported remote technology in many areas: “Once the agency accepted (and approved) borescope inspections, it embraced the concept of remote technology.”
The Busch letter goes on: “If the original authors of [FAR] 43.3(d) were willing to grant the supervisor responsibility and authority to determine ‘the extent necessary to ensure the work is done properly,’ wouldn’t it logically follow that those same original rule authors would also be willing to grant the supervisor responsibility and authority to determine the appropriate method for exercising that supervision, including the use of available technological means? We are convinced they would.”
The consequences of the Moss interpretation will have a profound effect on maintenance providers, according to Busch. Repair stations that employ non-certificated technicians would have to employ a certificated mechanic to work one-one-one full-time with each person they supervise, which would be economically unfeasible. The practice of owner-assisted annual inspections and maintenance would become untenable due to the need for a mechanic to work 100% of the time with the aircraft owner.
“Given the present acute shortage of certificated mechanics, particularly in general aviation, it would be extremely unfortunate to put an end to the ability of repair stations and other maintenance facilities to employ mechanic-trainees who are working to gain the experience necessary to obtain A&P mechanic certification, and to put an end to owner-assisted annual inspections and other owner-performed maintenance under A&P supervision,” Busch wrote.
In concluding the request for reconsideration, Busch and others who signed the letter, asked the FAA to revise the interpretation and restore “a supervisor’s discretion to determine the extent of supervision necessary to ensure that the work being supervised is done properly, discretion that has been eviscerated by the Moss interpretation. We also request reconsideration of the Moss interpretation’s total ban on using electronic means by a supervisor to satisfy the 43.3(d) requirement to ‘personally observe’ the work performed.
“In short, we request that AGC-200 withdraw the Moss interpretation or amend or supersede it with an interpretation that conforms with the plain-language meaning of 43.3(d) as it has been universally understood throughout the industry for the past 60 years.”