Department of Transportation (D.O.T.) Federal Aviation..., 1997 WL 34613511...

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1997 WL 34613511 (D.O.T.)

Department of Transportation (D.O.T.)

Federal Aviation Administration

Legal Interpretation

Interpretation 1997-9

April 17, 1997

Charles Lewis

*1 This is in response to your letter of February 27, 1997, regarding a request for an interpretation of 14 C.F.R. § 121.628. 

Specifically, you request an interpretation of the terms “departure” and “enroute,” and whether the use of a minimum 

equipment list (MEL) under § 121.628 is applicable to discrepancies occurring after push-back, but prior to take-off.

The FAA has, as referenced in your letter, defined the term “departure” to mean “the time the aircraft leaves the takeoff 

surface.” See September 18, 1990 Letter to J. Miller from D. Byrne, Acting Assistant Chief Counsel. “Take-off,” in turn, has 

been defined as “the act of beginning flight in which an aircraft is accelerated from a state of rest to that of flight.” Id.

Consistent with these definitions, the FAA has interpreted the term “enroute” to be “from the time of lift off to the time of 

touch down.” See September 21, 1988 Letter to Manager, Flight Standards Division, ANM-200 from J.H. Cassady, Assistant 

Chief Counsel, Regulations and Enforcement Division. The FAA has not changed its view regarding the scope of these 

definitions.

As to the applicability of the MEL to discrepancies occurring after push-back, but prior to take-off, the FAA notes that the 

MEL concept recognizes that a flight or series of flights might be continued with certain inoperable instruments or equipment 

without compromising the safety level implied by the type certificate. See 56 Fed. Reg. 12,306 (Mar. 22, 1991). The MEL is 

therefore a “dispatch document.” Id. at 12,307. This means that prior to releasing a flight, the dispatcher must be made aware 

of any item on the MEL that becomes inoperative. The dispatcher must be made aware of each MEL item regardless of 

whether the specified MEL procedure requires a mechanic to address the discrepancy before releasing the flight or whether 

the specified MEL procedure allows the pilot-in-command (“PIC”) to address the discrepancy.1

Specifically, § 121.628 prohibits take-offs with inoperable instruments or equipment unless an approved MEL exists for that 

airplane and the procedures relating to its use are followed.2 See § 121.628(a)(1). The regulations also require that a flight 

crew have “direct access” to the MEL at all times prior to flight.

3 See § 121.628(a)(2). Accordingly, the procedures relating to 

the MEL must be applied before take-off, even after push-back.4

Therefore, in the event a discrepancy is discovered following push-back, but before take-off, and the MEL procedures for that 

item require a mechanic’s inspection, take-off would be prohibited. Alternatively, where an item found inoperative during 

taxi will still permit the aircraft to be operated by the PIC in accordance with the approved MEL, a flight may take-off. 

Finally, a discrepancy with an item not listed on the approved MEL would require that the aircraft not take-off, but instead 

return to the gate.

*2 In contrast to § 121.628, § 121.627(b) applies to required equipment becoming inoperative enroute. As noted above, the 

FAA has consistently interpreted the term enroute as the time between take-off (when the aircraft leaves the runway surface) 

and landing. As a result, § 121.627(b) is not implicated where a failure occurs during taxi.

This response was prepared by Stacie H. Galliani, Attorney, Operations Law Branch, and Joseph A. Conte, Manager. It has 

been coordinated with the Air Transportation Division of the Flight Standards Service at FAA Headquarters. We hope that 

this information satisfies your request.

Donald Byrne

Assistant Chief Counsel
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Footnotes

1 In response to comments by the International Federation of Airline Dispatchers Association that dispatchers should be provided the 

same information, including access to MELs, as the flight crews, the FAA stated that:

The FAA agrees that dispatchers should be provided with the same information since they are jointly responsible, with the PIC, for 

the dispatch of the flight. The FAA has determined that the authority provided in FAR § 121.605 covers this point and does not see 

a need to further clarify the requirement.

See 56 Fed. Reg. 12.307.

2 Consequently, “[a]n approved Minimum Equipment List ... constitutes an approved change to the type design.” See id.

3 Note that the term “flight” as used in § 121.628(a)(2) is not synonymous with “flight time” (i.e., “block to block” time), but rather 

refers to when the aircraft has left the earth’s surface. See, e.g., September 21, 1988 Letter re: Definition of Enroute, supra. (“No 

matter how one defines “flight’ the connotation is that the object must literally be flying through the air.”)

4 You cite in your letter a 1991 oral initial decision by Administrative Law Judge Patrick C. Ceraghty in Administrator v. Buckalew, 

Case No. 89WP230099 (3/25/91) for the proposition that the policy of deeming an aircraft to be “enroute” immediately after 

push-back was unsound. Note that under the National Transportation Safety Board’s Rules of Practice, an appeal that is not 

perfected by filing an appeal brief within 50 days after an oral initial decision has been rendered or 30 days after service of a 

written decision may be dismissed by the Board. See 49 C.F.R. § 821.48(a). The NTSB dismissed the appeal in Buckalew for 

failure to file an appeal brief. See Busey v. Buckalew, Order EA-3395 (9/15/91). Accordingly, Judge Geraghty’s oral initial 

decision cannot be relied upon as precedence. See 49 C.F.R. § 821.43.

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