AOPA Pilot Magazine - December 2024 - 89

happens, the supervisor will be held
responsible, both in terms of possible FAA
certificate action and possible civil liability
for negligence.
The second condition ensures the
supervisor will be available to answer any
questions the uncertificated mechanic
might have and to help out if the uncertificated
mechanic gets stuck at any point
while doing the work. Often a phone call
is all that's necessary, but the rule says the
mechanic must be " readily available, in
person " when necessary.
This rule, which hasn't changed for at
least 60 years, seems straightforward and
eminently reasonable, doesn't it? Most A&Ps
have been in the position of supervising and
signing off work performed by non-A&Ps,
and most of us had a clear understanding
of what 43.3(d) requires. Or so we thought.
The Moss Interpretation
On July 8, 2022, Jonathan Moss, manager
of the Little Rock Flight Standards District
Office, sent a request to the Regulation
Law Division at FAA headquarters (AGC200)
for a legal interpretation of 43.3(d).
His question was a simple one: Does
the requirement for the supervisor to
be " readily available, in person, for consultation "
require the supervisor to be
physically present at the work site, or can
the consultation be done remotely, using
Zoom, FaceTime, live-feed TV, digital photographs,
downloadable video, or other
electronic means. In short, Moss asked
the FAA lawyers what " in person " means
in the twenty-first century.
I'm not sure why Moss asked this
question, but it took the lawyers at FAA
headquarters 26 months to answer it. On
September 3, 2024, AGC-200 sent a memorandum
of interpretation to Moss that
stated unequivocally that the phrase " in
person " explicitly requires physical presence,
and that " virtual presence, through
a live video feed or other technological
means, cannot replace the physical presence
of a supervising mechanic. "
I think most A&Ps would agree that
when an apprentice mechanic asks his
supervising A&P for help with something,
the supervisor's physical presence is sometimes
necessary. Other times, a phone call
or text message may be all that's needed.
Because some apprentice requests for consultation
require a supervisor's physical
presence, the requirement of 43.3(d) that
the supervisor be readily available to show
up in person-meaning physically present
at the work site-seems pretty reasonable.
If the Moss Interpretation had stopped
there, we'd all be fine with it. But unfortunately,
it didn't stop there. Indeed, it went on
to say some things that every A&P I've discussed
this with believed to be unreasonable
and unacceptable. For one thing, the Moss
Interpretation memo concludes with: " For
these reasons, the Office of Chief Counsel
finds that 14 CFR 43.3(d) does not allow for
remote supervision of maintenance. "
Although sometimes a supervisor's
physical presence is necessary and appropriate,
most of the time it isn't. Often the best
way to determine if the work is being done
properly is by using high-resolution photos,
borescope images, videos, and so forth.
Sometimes, flashlight and mirror might be
best. The supervising mechanic should have
the discretion to determine what he needs to
be satisfied that the work is done properly,
and to what degree his physical presence is
needed. The Moss Interpretation's blanket
ban on remote supervision seems to take
that discretion away.
In today's world where robotic surgery
is performed remotely, war is being
waged by remotely piloted vehicles, and
the FAA is increasingly exercising its oversight
responsibilities remotely, it seems
unnecessarily conservative and regressive
for the FAA to be saying that the only
way an A&P can supervise the work of an
apprentice is to be physically present. It's
one thing for the supervisor to be " readily
available " in case physical presence
is needed (and sometimes it is) but quite
another thing to state that the supervisor's
physical presence is always required.
It gets much worse
Unfortunately, the Moss Interpretation
memorandum didn't stop there. In the
middle of page 2, the memo states:
The phrase " readily available, in person,
for consultation " contemplates a
physical, hands-on approach to supervision.
The certificated mechanic must be
available, not just to answer questions,
but to notice mistakes and take over
if necessary.
Yikes! Nothing in the plain commonsense
language of 43.3(d) suggests such an
omnipresent and interventionist approach
to supervision. Yet these two sentences in
the middle of the Moss Interpretation memo
appear to completely eviscerate the supervisor's
discretion to determine the extent of
supervision necessary to ensure the work is
performed properly. They seem to require
the supervisor to be joined at the hip to the
person being supervised, looking over his
shoulder, breathing down his neck, and
spring-loaded to take over at the first sign
of a misstep.
AOPA PILOT / December 2024
89
AOPA Pilot Magazine - December 2024

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