Pilot Counsel: Going Broke

March 2026 editorial comment and update:  This article first appeared in the September 2017 AOPA PILOT magazine.  John Yodice relied on an FAA Chief Counsel’s legal interpretation issued in February of 2017 to enlighten us on the FAA’s position regarding continuing operations under the placarding section of FAR 91.213. A subsequent 2018 interpretation reaffirmed the requirement that the placarded item must be repaired, replaced, removed, or inspected at the next required inspection.  I emphasize inspected because the 2018 interpretation makes clear that “…if the inoperative instrument or item of equipment is not repaired, replaced or removed at the next required inspection, the inoperative item must be inspected again (reevaluated) at that inspection in order to ensure that the discrepancy will not have an adverse effect on the safe operation of the aircraft.” In other words, there’s no requirement to repair or replace or remove the placarded item, “…so long as a reevaluation is accomplished and documented at each required inspection.”  It’s presumed that “documented” means a maintenance log entry, but neither does the regulation nor the interpretation specify that the inspection and entry must be made by a certificated mechanic or IA. Does this then mean an aircraft owner is permitted to inspect/reevaluate the item and log same in a manner similar to what the provisions for preventive maintenance under Part 43 allow? Possibly, but it seems an unnecessary risk when your maintenance professional can inspect and make the entry and remove any doubt.     

FAR 91.213, “Inoperative instruments and equipment,” with its far-reaching mandate-- has been a challenge to almost every general aviation pilot and owner.  It says: “No person may take off an aircraft with [any] inoperative instruments or equipment installed.”  What has made this mandate challenging is that it is not intuitive.  It applies regardless of whether the instrument or equipment is specifically required or reasonable for the flight.  There are exceptions to the rule, and the one most beneficial to most of general aviation permits the deactivation or removal of the inoperative instrument or piece of equipment, and requires the placarding of the item and/or its cockpit control as “inoperative.” 

May an aircraft utilizing this placarding exception be operated indefinitely under that exemption?  A recent interpretation by the FAA’s chief counsel answers “no”.  The interpretation says the aircraft owner or operator must have the placarded item “repaired, replaced, removed, or inspected at the next required inspection.”  Continuing operation under this placarding exception is up to the person authorized to conduct the required inspection.

The placarding exception applies only to “rotorcraft, non-turbine-powered airplane, glider, lighter-than-air aircraft, powered parachute, or weight-shift-control aircraft, for which a master minimum equipment list has not been developed.”  And even if a Master Minimum Equipment List has been developed, it is available for “small rotorcraft, nonturbine-powered small airplane, glider, and lighter-than-air aircraft.”  These descriptions comprise the numerically larger segment of general aviation.  (Small aircraft are defined as aircraft of 12,500 pounds or less,  
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maximum certificated takeoff weight.)  And the exception for approved minimum equipment lists exists mostly for airliners, commuters, air taxi operators, and the higher end of GA aircraft.  MELs have not been obtained for more general aviation aircraft because of the administrative burden in obtaining one, and the FAA’s limited capacity in handling a large number of such applications. 

Deactivation may mean a process as simple as the pilot pulling a circuit breaker to the open or off position or as complex as a maintenance task requiring a certificated and appropriately rated maintenance person to perform and record the deactivation. 
   
What is also complex for typical general aviation pilots and owners is that the inoperative instrument or equipment must not be part of the VFR-day type certification instruments and equipment prescribed in the applicable airworthiness regulations under which the aircraft was type certificated (not typically seen by the owner or pilot); indicated as required on the aircraft’s equipment list, or on the Kinds of Operations Equipment List for the kind of operation being conducted; required by Section 91.205 or any other rule of Part 91 for the specific kind of flight operation being conducted; or required to be operational by an airworthiness directive.

Here is an old enforcement case, admittedly extreme, illustrating that the mandate applies regardless of reasonableness.  A charter operator with a single 20-year-old airplane, a single-pilot operation, was fined $5,000 for operating his Piper Cherokee with one of its two glideslope indicators placarded “inoperative.”  Efforts to repair the intermittent glideslope were frustrated because it worked on the bench.  The other glideslope was working fine.  In an effort at compliance, he placarded the relevant nav receiver “GS INOP.”

It is ironic that his effort to comply with the regulation is what got him in trouble.  An FAA inspector, in the course of a ramp inspection, looked into the cockpit and saw the placard.  FAA argued that the placarding exception does not apply to charter operations.  Enforcement followed.  The operator tried to defend himself by explaining that his operations specifications, imposed on him by the FAA, prohibited him from operating IFR in his charter operation.  The island airport to which the operator routinely flew passengers didn’t even have an ILS.  

An appeal to the then acting FAA Administrator failed.  The administrator specifically held that the margin of safety was reduced.  As for an appropriate penalty, the Administrator believed that even though the fine amounted to 100 percent of the net revenues from charter operations for the year, the amount of the penalty was appropriate.  Perhaps technically correct but not reasonable.  I am confident that the result would be different today.  But the point is, the regulation could be strictly applied regardless of reasonableness.  
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                                         Copyright © Yodice Associates 2017.  All rights reserved.
       
John Yodice is the former Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com
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