The FAA’s Office of the Chief Counsel recently issued the De Joseph legal interpretation which makes clear that aircraft operated under Part 91 cannot be operated indefinitely “with inoperative equipment installed.” The inquiry centered on whether § 91.213(d)(2) was a standalone paragraph or whether it must be read in context. The interpretation states that it must be read in context, meaning that the owner or operator must have the item repaired, replaced, removed, or inspected at the next required inspection. It alsomeans that operations with discrepancies under § 91.213(d)(2) are only available for the aircraft described in § 91.213(d)(1) (generally, light non-turbine aircraft in several listed classes).
Additionally, the interpretation clarifies the requirement of § 91.405(c) that equipment permitted to be inoperative under § 91.213(d)(2) must be addressed at the next required inspection is a limited exception to § 91.405(a). § 91.405(a) requires discrepancies to be repaired between inspections unless § 91.405(c) permits operations with the inoperative equipment to continue until the equipment is addressed at the next required inspection, but not indefinitely.
Most of us who’ve rented aircraft have seen instruments or pieces of equipment placarded “INOP.” As a quick refresher, youmust confirm that the item in question is not required by any of several documents and regulations before concluding that the aircraft can be legally flown without it being operational. Of course, the pilot (or a mechanic) must also conclude that the aircraft can be safely flown without it, but that is beyond the scope of this article.
If the aircraft has a Minimum Equipment List, then that controls. If not, the following must be consulted to see if they require the item in question to be functional: Type Certificate Data Sheet per § 91.213(d)(2)(i), Manufacturer’s Kinds of Operations Equipment List per § 91.213(d)(2)(ii), 14 CFR § 91.205 or any other Part 91 regulation “for the specific kind of flight operation being conducted” per § 91.213(d)(2)(iii), and Airworthiness Directives per § 91.213(d)(2)(iv).
If not required by any of the above, then the item may be either deactivated and placarded inoperative or removed. It is important to note that the removal would have to performed and logged pursuantto Part 43, as would the deactivation if it involves maintenance. If the aircraft is not airworthy with the instrument or equipment inoperative, then either it would need to be repaired where it is or, prior to flying the aircraft to a repair station, you’ll need a Special Flight Permit, commonly known as a ferry permit.
