Re: [ercoupe-tech] FAA making changes to Sport Pilot and LSA rules

[William R . Bayne]

Good afternoon, Bill
Sometimes we, the people, allow "our" bureaucrats to intimidate us from  
properly understanding our RIGHTS.  We must remember that they are  
creature of statute that do not, in and of themselves unilaterally,  
have the power to expand said statute(s).  To advise is to recommend,  
not to mandate.

References in classic literature 
It is time now to recollect that the powers were merely advisory and  
recommendatory; that they were so meant by the States, and so  
understood by the convention; and that the latter have accordingly  
planned and proposed a Constitution which is to be of no more  
consequence than the paper on which it is written, unless it be stamped  
with the approbation of those to whom it is addressed.
Federalist Papers Authored by James Madison by Madison, James

Quoting from FAA Advisory Circular AC 120-27D of 8/11/04 (Aircraft  
Weight and Balance Control), p. 1:

100.  What is the purpose of this advisory circular (AC)?  a.  "This AC  
provides operators with guidance..."

b.  This AC presents recommendations for an acceptable means, but not  
the only means, to develop and receive approval...and includes  
guidance...

c.  "If an operator adopts the suggestions contained in this AC, the  
operator must ensure that, when appropriate (left to the discretion of  
the operator) it replaces discretionary language such as "should" and  
"may" with mandatory language in relevant manuals, operations  
specifications..."

You claim as "absolutely binding" AC 43.13 1A and 2B.  While I agree  
these are the "bible" for aircraft maintenance, I categorically  
disagree that they are any more exclusive and mandatory as to the  
RECOMMENDATIONS therein than other ACs.

The purpose of said AC, stated at the outset, is that it "contains  
methods, techniques and practices acceptable to the  
Administrator...only when (in the absence of otherwise controlling-WRB)  
there are no manufacturer repair or maintenance instructions (per Title  
14 [FARs] Part 43..."with which persons engaged...should be familiar"  
because it, and only it, is mandatory, or controlling).  It does not  
claim to contain ALL "methods, techniques and practices acceptable to  
the Administrator" to the administrative exclusion of other credible  
opinions and/or alternates as properly meet the overall purpose(s)  
intended.

So. I repeat, the person writing the language in an AC is not writing a  
document with the force of law such that one may be disciplined in any  
manner for not following same.  I do not believe that the wording of  
any AC "absolutely qualifies" anything.

Regards,

William R. Bayne
.____|-(o)-|____.
(Copyright 2008)

--  

On Apr 15, 2008, at 13:12, WILLIAM BIGGS wrote:

 
Bill,
As recently as 4/17/2007 the FAA has made it clear that performing  
preventative maintenance is a "priviledge" of a holder of a pilot  
certificate.
 
You said:"The statement of some faceless bureaucrat in Advisory  
Circular AC43.12 that "to perform preventive maintence" is a privilege  
is a similarly generic use of words.  It's the opinion of that  
individual, and of no regulatory significance"
  
It is that "faceless bureaucrat" that will come out of the woodwork  
and bite you, see the recent posts on polished props.
  
Advisiory Circulars are used to clarify the FARs, They are approved by  
the Administrator and are in fact ABSOLUTELY binding. Example:
AC 43.13 1A and 2B are the "bible" for aircraft maintenance.
 
Do I agree that a pilot with an expired medical should not be allowed  
to perform preventative maintenance?
 
No, what bearing does it have on the knowledge he obtained in earning  
his pilot certificate.
 
Does it make any sense? No.
 
Are the regulations clear?
 
I am afraid, Yes.
 
Bill
  
        1       Subject: Preventive Maintenance
Date: 4/18/07

Initiated by: AFS-350
AC No: 43-12A

Change: 1
 
	1 	1. PURPOSE. This advisory circular (AC) provides information  
concerning preventive maintenance, including who may perform it, the  
standards of performance applicable to it, authority for approval for  
return to service, and the applicable recording requirements. This AC  
clarifies those areas most frequently misunderstood in the past.

	1 		2 		3 	c. Authorization to Perform Preventive Maintenance and  
Approve for Return to Service.
	4 	(1) In addition to those persons listed in paragraph 3a, §  
43.3(g), (h), and (i) authorize the holder of a pilot certificate  
issued under part 61 to perform preventive maintenance. Section 43.7  
limits the privilege to persons holding at least a private or sport  
pilot certificate and § 91.407(a)(1) prohibits operation of the  
aircraft unless approved for return to service. Further, pilots may  
only approve for return to service preventive maintenance which they  
themselves have accomplished.
 
 
  
  Again: FAR 61.23
      Medical certificates: Requirement and duration.

[(a) Operations requiring a medical certificate. Except as provided in  
paragraphs (b) and (c) of this section, a person:]
(1) Must hold a first-class medical certificate when exercising the  
privileges of an airline transport pilot certificate;
(2) Must hold at least a second-class medical certificate when  
exercising the privileges of a commercial pilot certificate; or
(3) Must hold at least a third-class medical certificate--
(i) When exercising the privileges of a private pilot certificate;
  
 
 



 To: ercoupe-tech@yahoogroups.com
From: [EMAIL PROTECTED]
Date: Tue, 15 Apr 2008 11:23:32 -0500
Subject: Fwd: [ercoupe-tech] FAA making changes to Sport Pilot and  
LSA rules

 All:

I am posting the following off-list strings to the list in response  
to several requests to do so.

Regards,

WRB

Begin forwarded message:

From: William R. Bayne <[EMAIL PROTECTED]>
Date: April 15, 2008 00:20:43 CDT
To: WILLIAM BIGGS <[EMAIL PROTECTED]>
Cc: Jerry Eichenberger <[EMAIL PROTECTED]>, Ed Burkhead  
<[EMAIL PROTECTED]>, <[EMAIL PROTECTED]> <[EMAIL PROTECTED]>  
<[EMAIL PROTECTED]>, John Cooper <[EMAIL PROTECTED]>,  
my_ercoupe <[EMAIL PROTECTED]>, <[EMAIL PROTECTED]>  
<[EMAIL PROTECTED]> <[EMAIL PROTECTED]>, heavensounds Cortes'  
<[EMAIL PROTECTED]>
Subject: Re: [ercoupe-tech]      FAA making changes to Sport Pilot  
and LSA rules


Hi Bill (off list),

Yes, hairs may need to be split carefully here to prevent unnecessary  
confusion.

When the government used an Ercoupe for the 1941 JATO testing, some  
described the aircraft used as a "YO-55".  Their use of the word was  
generic, and misleading; inasmuch as the airframe used was most  
definitely NOT the one and only YO-55.  From considerable research  
(not all mine) I personally know this to be absolute fact.    
Incorrect words in official report(s) remain incorrect. I can support  
what I know to be the truth beyond reasonable doubt.  At all levels  
of government there are mistakes aplenty.

The statement of some faceless bureaucrat in Advisory Circular  
AC43.12 that "to perform preventive maintence" is a privilege is a  
similarly generic use of words.  It's the opinion of that individual,  
and of no regulatory significance.  According to the FAA, advisory  
circulars (ACs) are, in whole and in part, advisory and not  
mandatory.  As Benjamin Franklin said:  "If you call a steer a bull,  
he's grateful for the compliment; but he'd much prefer having back  
that which was originally his."  ;<)

FAR Section 43.7 DOES state, under (f):  "A person holding at least a  
private pilot certificate may approve an aircraft for return to  
service after performing preventive maintenance under the provisions  
of § 43.3(g)."  As stated before, the holder of said certificate  
HOLDS it until revoked or suspended.  No medical is mentioned or  
inferred in this section as pertaining to the execution of such  
required paperwork.

All "official" requirements for medical certificates pertain to  
"operation" or "operations" (in the context of flight or navigation),  
as I previously explained; and even this, for a private pilot  
operating under light sport, is "covered" by possession of a valid  
drivers license.  THAT is the only medical required, for whatever  
reason, and a private pilot "operating" under SP HAS that.

Yes, FAR Section 43.5 prohibits operation of an aircraft following  
preventive maintenance unless approved for return to  service, but  
any valid PP certificate (not a 3rd class medical) is the sole  
authority required to do that.

I respectfully disagree that the "operation" or "operations"  
described in FAR 61.23 have any stated or intended application to the  
performance of preventive maintenance under FAR 43.3(g).  One may not  
infer that they do in the absence of language to that effect. 

I highly doubt that you can find anyone in the FAA willing to stake  
their future promotion(s) on asserting such a connection IN WRITING  
AND PERSONALLY SIGNING SAME without a LOT more evidence than you  
provide here.

Regards,

William R. Bayne
.____|-(o)-|____.
(Copyright 2008)

--

On Apr 14, 2008, at 22:50, WILLIAM BIGGS wrote:

Bill,
  
 You said:
 "The performance of preventive maintenance is NOT a "privilege" in  
any manner related to other requirements said HOLDER must meet."

 Here is a quote from AC43.12A
 Para 4.C.
Persons authorized   to  perform  preventive   maintenance.    In   
addition   to
those  persons  listed    in  paragraph  4a of  this   ACr Section   
43.3(g)   authorizes   the
holder  of  a pilot    certificate      issued  under  Part  61 to   
perform  preventive
maintenance.    Section  43.7  limits    the  privilege    to   
persons  holding  at  least   a
private    pilot    certificate      and Section  43.5  prohibits     
operation   of  the  aircraft
unless  approved for   return   to  service.
  
  
 Again:
      Medical certificates: Requirement and duration.

[(a) Operations requiring a medical certificate. Except as provided  
in paragraphs (b) and (c) of this section, a person:]
(1) Must hold a first-class medical certificate when exercising the  
privileges of an airline transport pilot certificate;
(2) Must hold at least a second-class medical certificate when  
exercising the privileges of a commercial pilot certificate; or
(3) Must hold at least a third-class medical certificate--
(i) When exercising the privileges of a private pilot certificate;
 
 So AC43.12A absolutely qualifies preventative maintenance as a  
"priviledge" and 61.23 says you cannot "exercise the priviledges"  
without a current medical.

 
 Bill

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ 
++++++++++++++++++++++

Begin forwarded message:

From: William R. Bayne <[EMAIL PROTECTED]>
Date: April 14, 2008 20:21:59 CDT
To: WILLIAM BIGGS <[EMAIL PROTECTED]>
Cc: Jerry Eichenberger <[EMAIL PROTECTED]>, Ed Burkhead  
<[EMAIL PROTECTED]>, <[EMAIL PROTECTED]> <[EMAIL PROTECTED]>  
<[EMAIL PROTECTED]>, John Cooper <[EMAIL PROTECTED]>,  
my_ercoupe <[EMAIL PROTECTED]>, heavensounds Cortes'  
<[EMAIL PROTECTED]>, <[EMAIL PROTECTED]> <[EMAIL PROTECTED]>  
<[EMAIL PROTECTED]>
Subject: Re: [ercoupe-tech]      FAA making changes to Sport Pilot  
and LSA rules


Hi Bill (off list),

Refer to Part 43 "Maintenance, Preventive Maintenance, ..."

         § 43.1:  "...this part prescribes rules governing..."

        § 43.3:  "Persons authorized..."

                "(g) The holder of a pilot certificate issued under  
Part 61 may perform...preventive maintenance on any aircraft owner  
or                        operated by that pilot..."

So, the RULE is clear and unambiguous.  It is a specific and  
continuing authorization granted the HOLDER of said pilot certificate  
to perform preventive maintenance limited only by related verbage IN  
THIS SECTION.  The performance of preventive maintenance is NOT a  
"privilege" in any manner related to other requirements said HOLDER  
must meet.

This is consistent with:

        § 61.3  Requirements for certificates, ratings, and  
authorizations
                (a)  Pilot certificate.  A person may not act as  
pilot in command..unless that person has a valid pilot  
certificate...when                       exercising the privileges of  
that pilot certificate or authorization."
               
                (c)  Medical certificate
                        (1)  ...a person may not act as pilot in  
command...unless that person has a current and appropriate  
medical                              certificate...or other  
documentation acceptable to the Administrator...."

        § 61.19  Duration of pilot...certificates
                (c)  ...A pilot certificate...issued under this part  
is issued without a specific expiration date.

        § 61.23  Medical certificates:  Requirement...pertains to  
"operations".

So, a pilot certificate issued without a specific expiration date  
remains valid indefinitely unless or until revoked or suspended.  The  
"holder" HOLDS it wholly independent of a medical certificate, valid  
or otherwise.

The performance of preventive maintenance is separate and unrelated  
to acting as "pilot in command" or the conduct of "operations" as  
defined.  With respect to aircraft, "operate" means use, cause to use  
or authorize to use aircraft for the purpose of air navigation (or)  
piloting of aircraft. 

The private pilot operating under Sport Pilot provisions retains the  
training, knowledge and authorization to perform preventive  
maintenance.

 The private pilot operating under Sport Pilot provisions HAS, with  
regard to medical certificates, "other documentation acceptable to  
the Admininstrator" to conduct "operations" (if he/she have their  
valid driver's license in their possession) to such extent as this  
might somehow be deemed pertinent to their performing of preventive  
maintenance.

In my humble opinion, these rules and regulations are clear without  
apparent conflict or need for further interpretation.

Regards,

William R. Bayne
.____|-(o)-|____.
(Copyright 2008)

--

On Apr 14, 2008, at 15:47, WILLIAM BIGGS wrote:

My understanding is if your PP medical is expired you are not  
eligible to "exercise the priveleges" of that certificate.
 One privilege is flying, another is perform preventative maint.
  
 As always, I may be wrong.
 Bill


CC: [EMAIL PROTECTED]; [EMAIL PROTECTED]; [EMAIL PROTECTED];  
[EMAIL PROTECTED]; [EMAIL PROTECTED]; [EMAIL PROTECTED];  
[EMAIL PROTECTED]
From: [EMAIL PROTECTED]
Subject: Re: [ercoupe-tech] FAA making changes to Sport Pilot and LSA  
rules
Date: Mon, 14 Apr 2008 13:27:52 -0500
To: [EMAIL PROTECTED]


Hi Ed (off list),

Maybe I'm missing something, but the way (g) is currently written the  
"holder of a pilot certificate issued under Part 61" continues to  
"hold" that RATING until or unless said rating is revoked.

John Cooper and Bill Biggs apparently take the position that pilots  
lose (are automatically denied) privileges not specifically preserved  
by the FAA in supplemental rulemaking.  I would, to the contrary,  
strongly assert that pilots retain privileges not specifically  
revoked by the FAA with due notice and following publishing in the  
Federal Register followed by an appropriate public comments period.

If the FAA is allowed to "interpret" new regulations so as to further  
restrict what a certificated pilot is allowed to do, such denies  
pilots regulatory "due process".  That is a slippery (and steep)  
slope no pilot worthy of the title should meekly accept.

Regards,

WRB

--

On Apr 14, 2008, at 10:22, WILLIAM BIGGS wrote:

FYI
 Here is the rule in question
   
 Sport pilot Rule
  
 Amend §43.3 by revising paragraphs (c) and (g) to read as follows:
§43.3  Persons authorized to perform maintenance, preventive
maintenance, rebuilding, and alterations.
  
   (g)  Except for holders of a sport pilot certificate, the holder  
of a
pilot certificate issued under part 61 may perform preventive  
maintenance
on any aircraft owned or operated by that pilot which is not used  
under
part 121, 129, or 135 of this chapter.  The holder of a sport pilot  
certificate
may perform preventive maintenance on an aircraft owned or operated by
that pilot and issued a special airworthiness certificate in the  
light-sport
category. 
  
 Bill 


To: ercoupe-tech@yahoogroups.com
From: [EMAIL PROTECTED]
Date: Mon, 14 Apr 2008 10:52:46 -0400
Subject: RE: [ercoupe-tech] FAA making changes to Sport Pilot and LSA  
rules

> Having a medical certificate is required for certain privileges,  
like acting as pilot in command, etc.
 
As I read it, a current medical is required for all privileges EXCEPT  
those specifically excluded in 61.23(b) and preventive maintenance is  
not listed there.  Doesn’t make a lot of sense, but I don’t think  
it’s supposed to…
 
If you revert to a sport pilot when your medical expires and a sport  
pilot is not allowed to perform preventive maintenance, well, ….
  
John Cooper
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