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

© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 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 d iscrepancies 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 th ese 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 an d 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 rel easing 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 r eleasing 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 dur ing 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

retur n 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 CounselDepartment of Transportation (D.O.T.) Federal Aviation..., 1997 WL 34613511...

© 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 Footnotes

1 In response to comments by the International Federation of Airline Dispatchers Association that dispatchers shou ld 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 defi nes “ 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 Administrat ive 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 Sa fety 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

.

1997 WL 34613511 (D.O.T.)

End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.