process technicality thwarts defense
The National Transportation Safety Board is known to many of us as the government agency that investigates transportation accidents and determines the cause of those accidents in order to make changes in the industry to prevent future tragedies. The NTSB also has a smaller function of adjudicating FAA enforcement actions to suspend or revoke FAA-issued certificates on the basis of alleged violations of the Federal Aviation Regulations. NTSB hearings, like all trial-like legal proceedings, have procedural rules that need to be followed. As you’ll see in the noted case, a failure to follow the rules can seriously handicap a respondent’s (defendant) ability to mount a defense.
The case at hand, which was decided on final appeal by the full NTSB in July of 2021, involves an A&P mechanic whose certificate was suspended 180 days for a violation of FAR section 43.13(a) relating to an allegedly improper repair of a nose strut and the non-repair of flap damage on a Cessna 172. While we will address some of the details of the repair issues, additional focus will be on the importance of adhering to the procedural rules for an NTSB appeal hearing—rules which are established for the benefit of all parties. Non-adherence to certain rules in this case, hindered the mechanic’s attempt to refute the FAA’s allegations.
Back in 2016, the FAA ramp-checked a Cessna 172 owned by a flight school. The FAA inspector identified two issues requiring maintenance: severe corrosion on the nose gear strut and severe chafing on the leading edge of the left-wing flap. The inspector returned a week later to conduct a follow-up inspection and found the airplane still in maintenance. He observed that the nose strut was now painted half-way up the chrome and that the flap chafing/gouging had not been addressed. A few weeks later, the inspector conducted a third follow-up inspection and subsequently issued a condition notice identifying the continued presence of strut corrosion and noting that it was “an imminent hazard to safety.” He did not reference the flap issue. An ensuing investigation revealed that the mechanic had previously approved the aircraft’s return to service with the following maintenance record entry: “Removed corrosion on nose strut and treated per Cessna SRM 51-11-00-6 page 5…” and “[a]djusted upper TE Wing to Flap clearance and Ops Check-OK.”
Ultimately, the FAA issued an Order of Suspension of the mechanic’s A&P certificate based on their assertion that the repairs were contrary to the regulations. The mechanic appealed the FAA order to the NTSB. Initial appeals are heard by an NTSB administrative law judge and further appeals (at the NTSB) are heard by the full NTSB, sometimes referred to as the full board. At issue, as noted above, was the FAA’s contention that the respondent-mechanic had improperly performed repairs on the nose strut chrome area and did not repair the gouging on the left-wing flap. The respondent-mechanic, on the other hand, contended that the FAA and the manufacturer give mechanics discretion on making repairs and his determination to conduct an interim repair (he did ultimately replaced the strut) was based on his experience as an engineer and mechanic. He did not believe the that the structural integrity of the strut was compromised. As for the wing flap, the respondent-mechanic had adjusted the flap for proper clearance and maintained that the surface damage was negligible and didn’t require repair.
Here’s where the procedural issues come into play. In the normal course of an NTSB appeal, or for that matter most any legal proceeding, there is a preliminary process for filing pleadings, making discovery requests, answering interrogatories, disclosing witness information, identifying evidence, and so forth. The judge assigned to the case oversees all this pre-hearing activity. The mechanic-respondent and his attorney were initially responsive to the process requirements, but for reasons not clearly indicated in the hearing record, the mechanic-respondent and his attorney failed to provide adequate details such as the identification of fact and expert witnesses and their curricula vitae (CV). This is an important process requirement that affords the parties the opportunity to object to witnesses and/or otherwise prepare for and conduct meaningful depositions and cross-examination. Respondent’s counsel ultimately provided a list of witness names and certain summary information, but not the detailed contact information or CVs requested. The FAA subsequently issued a Motion to Compel Discovery and the judge granted same, providing further notice to respondent-mechanic and his attorney that submission of the noted details was required. They never did comply. In fact, what the attorney did do was to file a Motion to Withdraw as Counsel of Record due to a conflict of interest with his paralegal who was subpoenaed as one of respondent’s witnesses—regrettably, there’s nothing much in the case record that casts light on this highly unusual conflict issue. Meanwhile, the FAA filed a motion to prohibit respondent-mechanic from introducing any expert testimony at the hearing since he had failed to provide this information in the pre-hearing process. The judge granted the FAA’s motion, thus striking all of respondent’s witnesses and exhibits. Respondent-mechanic’s new attorney requested a continuance of the hearing in order to learn about the case and get prepared to defend against the FAA’s charges, and it was denied, essentially, on the grounds that respondent-mechanic was given adequate opportunity to provide the requested information. It didn’t seem to help that the attorney conceded that they’d be ready for the hearing in the event that the judge denied their motion, thus apparently obviating any unfairness in the judge’s decision to hold the hearing as scheduled.
The parties proceeded to a multi-day hearing where the FAA called several witnesses supportive of its arguments and the respondent-mechanic was the sole witness for the defense. The law judge deemed the FAA’s witnesses more credible and its evidence more persuasive than respondent-mechanic’s testimony, and he sustained the FAA’s order including the 180-day suspension. The respondent-mechanic then appealed the judge’s decision to the full NTSB.
The NTSB board consists of 5 presidential appointees who, amongst other duties, serve as a court of appeals for airmen and certificated entities. The board bases its decisions on the record of the hearing before the judge and appeal briefs submitted by the parties—there is no trial-like setting.
On appeal, the respondent-mechanic alleged that the law judge: “(1) committed prejudicial error and denied his right to due process by striking his witnesses and exhibits, thus warranting a new trial or remand under 49 C.F.R. § 821.49(a)(4); (2) abused his discretion in denying his request for a continuance; and (3) deviated from law, precedent, and policy in finding for the F.A.A.”
The full board denied the respondent-mechanic’s appeal citing, among other things, “…respondent’s own inaction and refusal to comply with the NTSB Rules of Practice and the prehearing order that prevented him from offering witnesses.” Yes, this was a technicality, held up on appeal, that resulted in the respondent-mechanic not being able to call witnesses. Would witnesses have enabled the respondent-mechanic to mount a more persuasive argument at the initial NTSB hearing? Maybe. This case is an example where a procedural rule or technicality, if you like, may have impacted the outcome of a mechanic’s certificate suspension hearing.
All certificated AMTs know that maintenance activities performed on aircraft having U.S. airworthiness certificates must be appropriately recorded in the associated maintenance record. The “logging” requirement also applies to the performance of inspections requiring approval or disapproval of aircraft for return to service. The content, form and disposition of maintenance record entries is set out in FAR parts 43.9 and 43.11, and additional advisory information is contained in AC 43-9C. These resources relate the minimum information needed for compliance. It’s fairly straightforward, right?
Well, at least one mechanic got in big trouble for what he recorded and, notably, what he failed to perform. It’s not that the mechanic was deficient in describing the work, but rather, he failed to do the work he described—he made the entry before the work was completed. The FAA alleged the mechanic made an intentionally false statement and, additionally, alleged that he performed other maintenance not in accordance with the methods, techniques, or practices acceptable to the Administrator, violations of 43.12(a)(1) and 43.13(a), respectively. The FAA sought revocation of his mechanic’s certificate on an emergency basis.
The case was first heard by an NTSB administrative law judge (ALJ) in 2017. The ALJ affirmed the FAA’s revocation order and the respondent-mechanic appealed the decision to the NTSB’s full board, which ruled on the matter in 2019. I have pared down much of the detail of the case in the interest of brevity and to focus on the titled theme of this article.
The respondent-mechanic in this case was tasked with repairing an Evektor SportStar Plus, a Czech built LSA, that had been damaged in an accident. Unrelated to the damage, the respondent-mechanic also undertook to perform a brake upgrade and an increase to the aircraft’s maximum takeoff weight. The latter was to be done in accordance with a factory bulletin which called for the installation of vortex generators, an airspeed indicator marking change, a bigger nose tire, replacement of various placards, replacement pages in the aircraft operating instructions and maintenance and inspection procedures and recordation of the performed bulletin in the aircraft log book.
Fast forward past numerous delays over numerous months. The respondent-mechanic returned the aircraft to the owner and the associated log book entry stated “Performed Evektor Service Bulletin SportStar 011 b, MTOW increase to 1320 pounds”. We assume there were additional log entries related to other work performed, including the brakes, but no other entries are quoted in the case record. Subsequent to the hand-over, the aircraft owner and his consulting-mechanic expressed concerns to the FAA about the maintenance work performed by the respondent-mechanic. This led to an FAA inspection that revealed the rudder cables were not properly attached to the rudder pedals (loose castle nuts and no cotter pins) and that the MTOW bulletin was not fully complied with (no modification to the airspeed indicator, no modified placards, no revision of the pilot operating handbook and maintenance manual).
At the initial NTSB hearing, the respondent-mechanic testified that the logbook entry was made “to document what I did to the airplane before returning it to be repaired.” He further alleged that the entry indicated that he completed the “mechanical work” and did not intend to convey that he performed the entire service bulletin. He also indicated that he gave the owner’s consulting-mechanic an envelope with maintenance items to be completed. The owner’s consulting-mechanic also testified at the hearing and confirmed that he received an envelope containing maintenance records, but that the respondent did not say anything to him about the condition of the aircraft or outstanding maintenance items. The respondent-mechanic ultimately conceded that anyone reading the entry would be led to believe the MTOW bulletin had been fully completed. The ALJ ruled that the respondent-mechanic’s log entry was a false representation of a material fact that he made with knowledge of its falsity and thus found him guilty of intentional falsification. The respondent-mechanic appealed the ALJ’s ruling.
On appeal, the respondent-mechanic argued, among other things, that the ALJ gave improper deference to the FAA on the choice of revocation as the sanction and failed to consider mitigating factors. The respondent-mechanic’s not-so-novel argument that the ALJ failed to consider his lack of aviation accidents, incidents or prior enforcement actions and his cooperation as mitigating factors, produced a commonly repeated response from the NTSB: “We view a violation-and incident-free history as status quo, rather than a mitigating circumstance.” The respondent-mechanic’s appeal was denied and the emergency revocation of his mechanic certificate was affirmed.
In our experience, the FAA and the NTSB are resistant to favorable consideration of a mechanic’s after-the-fact explanation of an entry, especially one that seems clear in its language. The FAA relies heavily on the accuracy and integrity of records, mainly because the FAA is not able to oversee all records as they are made, therefore the FAA has to trust those of us in the system to make accurate, understandable entries. When FAA discovers an inaccurate entry that is part of a record meant to endure for years or decades, as done here, they tend to treat the author severely. The clear lesson: AMTs with log recording responsibilities should take great care to make compliant and accurate entries upon completion of their work.
The long arm of the law
Cross-over aviation activity could jeopardize your livelihood
Perhaps I’m easily impressed, but when I learn that a mechanic is also a pilot, I’m impressed. I am similarly impressed with a pilot who is a mechanic. I guess I appreciate the effort it takes to achieve each certification and I recognize the utility of having both. Be advised, however, there are circumstances where regulatory non-compliance in one arena can affect certification in the other.
Mechanics and pilots alike are subject to regulations that prohibit the making of any fraudulent or intentionally false statement on any application for a certificate or rating. The specific language of each regulation, 14 CFR 65.20, 14 CFR 61.59 and 14 CFR 67.403 differ somewhat to fit the duties and practices of the associated certificate. Notably, however, they all contain language that essentially says the commission of a prohibited act (fraudulent or intentionally false statement or entry) is a basis for suspending or revoking any airman certificate or rating held by that person. In other words, an airman deemed to have committed intentional falsification can result in suspension or revocation of all airman certificates, not just the one being exercised in connection with the falsification. Yes, that means if you’re an AMT-mechanic with a pilot certificate and your pilot certificate or medical certificate is targeted for falsification-related enforcement, then your A&P certificate is also very much at risk.
A 2019 case involving a Delta Airlines A&P mechanic, who was also a pilot, is instructive and on-point with this article. Prior to becoming a certificated mechanic and then a pilot, this individual had been stopped by law enforcement for driving recklessly in a parking lot. Evidently, he smelled of alcohol and was given a breathalyzer, the results of which was a blood alcohol content twice the legal limit. He was arrested for driving under the influence. He ultimately obtained a pretrial diversion—a program offered for first time offenders who agree to comply with certain conditions. In this case, the individual had to attend “DUI School” and perform community service. He was not convicted.
Fast forward a few years and this mechanic applied for a pilot medical certificate. The application asks numerous questions including a yes or no question to a history of any convictions involving driving while intoxicated. He truthfully and accurately answered “no”. Some years later, this mechanic-pilot again applied for a medical certificate. However, the language of the question had since been changed to include the term “arrest(s)”. In other words, the question now read history of any arrest(s) and/or convictions involving driving while intoxicated. The mechanic-pilot answered “no” and which led to the FAA issuing an emergency order revoking his private pilot, mechanic (A&P), and airmen medical certificates due to his alleged fraudulent or intentionally false answer—yes, the FAA was able to determine that he had indeed been arrested for DUI. And, here’s where it got really real for the working mechanic. An emergency revocation requires immediate action, i.e. immediate surrender of certificates and, in this case, pending the outcome of his petition challenging the FAA’s emergency determination. Such a petition is a type of preliminary appeal, giving airmen the opportunity to argue why they should keep their certificates during the adjudication process. Most mechanics I know cannot work without holding valid certification. Thankfully, the NTSB law judge found that the mechanic-pilot could keep his A&P certificate, but not his pilot and medical certificates, while they proceeded with the case. It was a short-lived victory, as you will see.
At the appeal hearing, the mechanic-pilot argued that he didn’t read the question and therefore, his wrong answer was merely an inadvertent mistake and not intentional falsification. The administrative law judge didn’t buy it. He maintained that a DUI event was such a dramatic incident that he didn’t find it credible that the mechanic-pilot wouldn’t read the question and the judge cited precedent requiring applicants to read applications carefully. Furthermore, the judge found that the FAA proved three prongs of the test required in intentional falsification cases: (1) the airman made a false representation, (2) in reference to a material fact, and (3) with knowledge of the falsity of the fact. The judge sustained the FAA’s Order of revocation, which included all three certificates. The mechanic-pilot wasn’t done. As was his right, he appealed that decision to the full NTSB, the “Board” as it’s often called. On appeals to the Board, cases are not re-litigated. Rather, the burden shifts from the FAA to the appealer, who must prove that the administrative law judge’s credibility determination, in this case, was arbitrary and capricious. The Board found that the record contained sufficient evidence to support the law judge’s credibility determination that the mechanic-pilot’s “no” answer to the medical application question about DUI arrests and convictions was false because he was trying to conceal the event. And, as to sanction, revocation was deemed an appropriate sanction.
For you sharp-eyed observers who note that CFR’s 65.20, 61.59 and 67.403 partially quoted above, refer to certificate suspension as an option and wonder why revocation is the norm, good question. We’ve attempted to influence a change for many years and our efforts are ongoing. The FAA and by extension, NTSB (law judges and the Board), take the position that intentional falsification, if proven, portrays a lack the qualification in terms of care, judgment and responsibility to hold any FAA airman certificate, no exceptions. We think there should be some leniency, suspension instead of revocation, in cases where there’s a reasonable explanation for a mistake or misunderstanding.
The bottom line is that this mechanic’s livelihood was severely impacted by his answer to a question on the FAA medical certificate application. Whether you think he was appropriately cited and sanctioned or not, you are warned to take extreme care when completing aviation-related paperwork, including applications and log entries.
AMT's and CBD's
If you’re a safety-sensitive employee subject to DOT drug testing, BEWARE—some readily available consumer products may contain substances that are harmful to your career.
Cannabidiol (CBD) products are very popular these days. You can find them on-line and in certain grocery stores and pharmacies of most states in varying forms, including oils, chewable gummies, and even topical lotions. CBD is supposedly moderately effective for treating insomnia, anxiety, and chronic pain. But is it legal, and what are the issues potentially affecting AMTs? Let’s take a look.
CBD is derived from the cannabis sativa plant, the genus and species of which includes both marijuana and hemp. In the U.S., marijuana is defined as a cannabis sativa plant that has greater than 0.3 percent THC (tetrahydrocannabinol), which is the compound that produces a “high”. In contrast, hemp is defined as a cannabis plant that has 0.3 percent or less THC. Unless you’re in a state where recreational or medical marijuana is legal, CBD is likely to be made exclusively from hemp. However, CBD can technically be made from marijuana and unless a clear distinction is made between CBD oil and cannabis oil, the potential for confusion exists—at present, the FDA does not certify the levels of TCH in CBD products. Accordingly, the potential to inadvertently consume THC, or too much THC, is very real, especially in states where marijuana is legal. If your use of CBD oil results in a positive drug test for THC, it can have immediate and lasting consequences -- the FAA will be notified, enforcement action taken, and that test result will remain a part of your record and require affirmative answers to questions on future applications to the FAA and potential employers.
So how much THC does it take to trigger a positive result in a DOT mandated test? 49 CFR Section 40.87 establishes the cutoff concentrations for drug tests. For marijuana metabolites (THCA), the cutoff for an initial test is 50 ng/mL and for a confirmatory test is 15 ng/mL. If a test result is below these levels, then it is negative. And, what do these values mean in a practical sense, e.g. how much CBD is needed to be consumed, and when (how recently), to produce a positive result? I have no idea and I won’t begin to speculate. This question, and its unknowable answer (to me, anyway), is the crux of this article; since it’s not easily known how much THC might be in a particular product and how much intake of it will produce a positive test result, it’s best to avoid using it altogether and avoid circumstances that could put you in jeopardy of becoming exposed to it, at least for now and until there is a change in the DOT drug testing process that will allow for medicinal use of these products.
The bottom line. Any CBD product that contains more than 0.3 percent THC remains classified as marijuana and is a Schedule I drug under the Controlled Substances Act. Independent of that, it remains unacceptable for safety-sensitive employee subject to DOT to use marijuana in any form. For all airmen, including AMTs, if you test positive for THC, even if it comes from a legally obtained CBD product or inadvertent ingestion, it is grounds for suspension or revocation of any certificate or rating issued under Part 65—and for now and the near future, the FAA has a zero-tolerance policy on positive drug tests and their sanction of choice is immediate revocation!
When does adherence to an engine manufacture’s TBO (Time Between Overhaul) become mandatory? Ah, a question for the ages—yes, both calendar time and running time may matter. But seriously, there’s a lot of confusion in the industry about engine overhaul compliance. Granted, it mostly comes from pilots and aircraft owners, but aviation maintenance professionals are not immune to occasional confusion.
Let’s start by reviewing a fairly recently issued (March ’19) FAA Legal Interpretation, otherwise known as a Chief Counsel Opinion. An aircraft owner asked if his Citation Bravo, powered by two Pratt & Whitney Model PW530 engines and operated under 14 CFR Part 91, must adhere to the 4000 hour TBO noted in the engine maintenance manual. The short answer was “…no, unless that TBO is specified in the applicable FAA-approved Airworthiness Limitations section or is required by an Airworthiness Directive (AD) or other FAA regulation.” The FAA Opinion goes on to point out that TBO was listed in Scheduled Maintenance Checks section of the manual and not in the FAA-approved Airworthiness Limitations Section. If it was listed in the latter, then it would be mandatory as provided by 14 CFR sections 43.16 and 91.403(c).
Ok, so what if this same aircraft was operated under the commercial operating standards of 14 CFR Part 135 instead? Part 135 operators are required to have operations specifications and these op specs may require compliance with a manufacturer’s TBO depending on which maintenance program is selected or approved. The Bravo is certificated for a seating configuration of nine seats or less (excluding any pilot seat) and therefore section 135.421 applies. This section simply says each certificate holder must comply with the manufacturer’s recommended maintenance programs, or a program approved by the administrator, which leads us back to the particular op specs; whatever it says rules. Variations of this basic construct also apply to aircraft operated under Part 125 and Part 121.
One final note, even if engine overhauls are deemed mandatory either by op specs, airworthiness limitations, or AD’s, TBO extensions are routinely granted by the FAA. For more information and guidance on obtaining engine time in service interval extensions see Advisory Circular 120-113.
Lien law is local
Most, but not all, states have statutes requiring claims of mechanic liens be recorded with the FAA Aircraft Registry at a minimum, in order to be effective. States will frequently couple the FAA filing requirement together with a requirement to file with the clerk of the local court having jurisdiction where the aircraft is located. Some states require that a written agreement for the work performed be filed with the FAA and that the claimant have possession of the aircraft in order to affect enforcement of the lien. Many states have provisions allowing the holder of a lien to sell a possessed aircraft to recover payments due. There are also varying time constraints and other administrative requirements that must be adhered to. Again, the laws of each state direct the filing and enforcement processes of liens.
As for recording a lien with the FAA, a claim must include, at a minimum, the following:
Once the FAA records a lien, they will send the claimant/secured party a Conveyance Recordation Notice which can be used in the future to release the claim of lien. In the meantime, the lien recordation will encumber the aircraft with an unclear “title” making it difficult to sell to an informed buyer. It’s important to note that the FAA will not take sides as to the validity of a lien claim – that is, just because the FAA accepts and records the lien is not proof that it is a valid and enforceable claim. A dispute over the validity of a lien and enforcement to recover the owed money will be subject to state law. And, if a claimant is found to have improperly encumbered an aircraft, it could produce a substantial penalty—think counter-claim for damages from a lost sale, for instance.
Potential mechanic’s lien claimants should become familiar with the lien-related laws and recording provisions of their state. And, as circumstances call for it, they should consult a competent aviation attorney for assistance.
Here’s an interesting case about the unauthorized alteration of a fuel tank that caused an emergency landing, destroyed an antique airplane and cost the operator a hefty fine.
The respondent in this case was a non-profit organization that operated a Boeing B-17G aircraft as a “Flying Museum”. The FAA alleged, and then proved, to the satisfaction of the FAA decisionmaker (a term that will be explained later), that the respondent violated numerous regulations deemed worthy of a $32,000 civil penalty. A review of the circumstances follows below.
The respondent-operator had an FAA-issued exemption allowing it to carry passengers for compensation or hire on local flights under Part 91 of the FARs. The exemption specified that the B-17 was to be maintained in accordance with the model’s type certificate data sheet, the FAA-approved inspection program, and appropriate military technical manuals. Ok, so far so good. This particular airplane had factory installed self-sealing rubber fuel bladders that were housed within aluminum shells. The aluminum shells both supported the rubber bladders and helped protect them against battle damage from projectiles. The shells themselves, however, were not suitable for holding fuel. They had removable end caps to access the bladders and had unsealed openings for fuel lines and fittings. Well, the ravages of time, not war, evidently caused significant deterioration of the rubber bladders and repairs were needed.
As is not unusual for a non-profit foundation, numerous tasks were undertaken by volunteers. In this instance, a volunteer group, including a pilot and several mechanics, was tasked with assessing the fuel tank repair options. The group concluded that the bladder system should be replaced with an aluminum system. One option was to fabricate new fuel tanks from scratch. Research and review of Boeing B-17 drawings and engineering prints revealed that the tanks were made of the same 1100 series aluminum that was used to make the already installed and available shells—aluminum tanks were used in some B-17’s, but not this particular model. After consultation with an industrial welder, the decision was made to keep the shells and modify them into tanks. At some point during the earlier deliberation, it was determined that changing from bladder fuel tanks to aluminum was not a major alteration since it did not alter the B-17’s basic fuel tank design. And evidently, this determination was unchanged despite the modification plan.
The shells were cleaned and inspected and sent to the welder where “patch plates” were made and welded onto the shells to create the tanks. The newly welded aluminum tanks and associated fittings were then installed in the aircraft and leak checked. No leaks were found and the de-facto volunteer Director of Maintenance, an A&P mechanic and not an IA, approved the airplane for return to service. It’s important to note that all the while, the executive director of the foundation was being briefed on the project and was involved in the decision-making process. Approximately fourteen weeks later, a leak was discovered on the left main fuel tank. It came from a crack in a weld on the bottom edge of the end cap; a weld seam that had been added during the recent alteration. The volunteer-mechanics decided to apply weld crack sealer externally rather than internally. The latter would have required removal of the shell fuel tank and taken much longer to repair. After the repair, the tank was leak checked and no leaks were noted. On the next flight, a fire broke out on the left wing. The crew performed an emergency off airport landing and no one was hurt, but the airplane was destroyed.
After an investigation, the FAA initially sought a $43,250 civil penalty action against the non-profit organization for alleged maintenance log deficiencies, including an inadequate return to service entry, and operating an unairworthy aircraft [FAR 91.405(b), FAR 91.407(a) and FAR 91.7(a), respectively]. Note that the case record does not indicate, nor do I know, if the FAA sought action against any individual mechanic or pilot. The alleged FAR 91.405(b) and FAR 91.407(a) violations stemmed from the FAA’s determination that converting the aluminum shells into fuel tanks constituted a “major alteration”. FAR 91.405(b) requires each owner or operator to “ensure that maintenance personnel make appropriate entries in the aircraft maintenance records indicating the aircraft has been approved for return to service.” FAR 91.407(a) prohibits operation after alteration unless “it has been approved for return for service by a person authorized under FAR 43.7 of this chapter.” FAR 43.7 in turn, refers to FAR Part 65 and FAR 65.81 specifically excludes mechanics from performing or supervising major alterations. Remember, it was a volunteer mechanic that signed off the maintenance. He did not have inspection authorization. Finally, FAR 91.7(a) provides that “no person may operate a civil aircraft unless it is in an airworthy condition.” According to the FAA, the modification was not included in the B-17’s repair manuals and therefore, the aircraft did not conform to its type certificate and was not airworthy.
The FAA civil penalty action was appealed to a Department of Transportation administrative law judge who upheld most of the allegations and reduced the civil penalty to $32,000. The respondent-operator then appealed that decision to the FAA decisonmaker. Unlike FAA enforcement cases targeting airmen (namely, pilots and mechanics) that are appealed to an NTSB administrative law judge and then can be appealed to the full NTSB board, when the FAA pursues civil penalty action against an entity, appeals are heard by a DOT administrative law judge. Further appeals go back to the FAA, an agency within the DOT domain and are heard by the FAA decisionmaker. The decisionmaker is officially the FAA administrator, but the legal decisions are usually made in concert with the Chief Counsel or the Deputy Chief Counsel for Policy and Adjudication.
One of the operator’s arguments presented at appeal was that they should not be liable for the actions of its independent maintenance personnel. They had raised this argument at the DOT appeal and the ALJ had held that the non-profit organization, as owner and operator under FAR Part 91, had responsibilities that were separate and apart from the responsibilities placed on the individual de-facto volunteer Director of Maintenance. They also attempted to refute the FAA’s contention, which was also supported by the ALJ’s decision at the previous appeal level that the alteration of the fuel tanks was a major alteration. In the end, the respondent’s appeal was denied by the FAA decisionmaker/administrator. We can assume that the FAA got their pound of flesh in the form of $32,000. This case illustrates that compliance is often a shared responsibility, and while mechanics and pilots are frequently seen as being in the FAA’s line-of-fire, the owner-operators take hits, too.
DOT through FAA mandates that all commercial aviation entities adopt, administer, and maintain an alcohol and drug testing program for safety-sensitive employees. FAA investigates compliance with these requirements and takes enforcement action for noncompliance with such requirements. Both the entity with the program and the individual who is subject to testing are responsible for following the regulations. For the most part, almost exclusively, enforcement action against individuals who have violated the drug and alcohol testing regulation is by way of an emergency FAA order that revokes that person’s certificates. The FAA has zero tolerance for mistakes and misunderstandings, and while the collectors and the lab may make mistakes, the FAA does not view many of the flaws that occur in the testing process as fatal to finding the individual in violation of the regulations—either a positive test or a refusal to test.
Maintenance Professionals who perform maintenance or inspections on aircraft used in commercial operations (generally speaking, work done for Part 135 and 121 operators) are required to be in a program that mandates testing in accordance with DOT/FAA regulations. There is an individual responsibility in this regard, so it is prudent to be sure of your particular responsibilities to be in a program, and it’s not wise to rely solely on what the company may be telling you, especially for contract mechanics.
Tip 1. Don’t do drugs. We’re talking about illegal substances and substances that used to be illegal but are now legal in some states. Marijuana, cocaine, PCP, heroin, and meth are all no-no’s. Don’t do them. Even if they’re legal, even if they’re medicinal. And avoid situations where you might unintentionally ingest substances that could produce a positive result. Be mindful that certain workout supplements, hemp seed bread, cocoa tea, poppy seed bagels, some Kind bars might contain trace amounts of problematic substances. Do your best to check labels on the foods you pick up in the states where marijuana is legal, and be wary of home cooked goods if you think marijuana could be in them; think laced edibles such as gummies, cookies and brownies. Don’t take chances because, so far, the FAA is not accepting accidental ingestion as a valid excuse for having drugs in your system.
Tip 2. Be careful with medications that you are prescribed. If you test positive for marijuana, cocaine, amphetamines, semi-synthetic opioids (i.e., hydrocodone, hydromorphone, oxycodone, and oxymorphone), and/or PCP, the MRO must report the positive test result unless you present a legitimate medical explanation for the presence of the drug or metabolite in your system. Be ready to let the drug testing lab know if you’re taking prescription medication, which may cause a positive test result. Taking medication following a procedure can be a legitimate explanation, as long as the result is not reported for an illegal drug of abuse like PCP and marijuana (yes, even legal marijuana is not a legitimate excuse in the aviation industry). And, it’s not legitimate if you use someone else’s medication even if it would be the kind that the doctor would prescribe for you, and the FAA has not accepted unintentional ingestion of someone else’s medication as a legitimate explanation either. You must have been prescribed the medication by a licensed professional and the prescription must be in your name.
Tip 3. Always take a notification to submit to a test seriously. If you are enrolled in an industry drug and alcohol program and are asked to submit to a test, take the request seriously and promptly submit to the test. You are generally required to submit to the test immediately upon getting the notice from your employer that you have been selected for a random test. The employer may allow you a reasonable time to submit to the test, but it will be the decision of the employer, not you, to determine what is reasonable. You may have just come off an all-night flight, or off an all-day shift, but don’t think you can take the test the next day. The lab may be busy and there’s a long line waiting to be seen for a test, but don’t leave and think you’ll come back later or the next day when it’s not so busy. Adhere to the instructions you are given to take the test and follow them, even if inconvenient. Otherwise, the regulations define a failure to appear to be tested within the time directed by your employer to be a refusal to test and that finding puts all of your certificates in jeopardy of being revoked on an immediate basis.
Tip 4. Never refuse a test. If you are asked to be tested, it is almost always in your best interest to submit to the test, no matter the reasons that you think may justify your failure to meet the testing requirements. Leaving the testing site before the process is complete, even to step outside onto the sidewalk for a breath of fresh air may constitute a refusal. Not showing up at the testing site immediately because you wanted to run a quick errand or show up for a previously scheduled appointment first could constitute a refusal to test. Failing to cooperate in the testing process by not following instructions or coming across confrontational might result in a determination that you refused the test. What constitutes a refusal to test goes beyond saying “I refuse to be tested.” It is really hard to imagine that any of us in the commercial aviation industry would ever intentionally violate the FAA’s regulations, including refusing a drug or alcohol test request or adulterating our sample, but because the definition is so broad and there are so many circumstances that we think reasonable, it’s important to understand the pitfalls! There are many cases involving safety sensitive employees who are alleged to have refused to be tested.
Tip 5. Don’t ever leave the testing site until the test is completely over. Once you have arrived at the testing site and checked in, do not leave the testing site until the testing process is completely over. Sometimes the wait to be seen can seem long, and sometimes, waiting until you’re ready to go in the cup can take a bit of time. Do not give in to the urge to go run an errand or get something to eat and come back, or to leave and come back in the morning when it may not be so busy and you’re ready to provide the specimen. Don’t leave the site until you’ve provided the sample, or until you’ve been told that you can leave, specifically, by the collector at the testing site. If you leave prematurely, the testing site will document your test as a refusal to test. The staff at the testing site are supposed to warn you that if you leave, the test will be coded as a refusal, but they don’t always provide a clear warning. During your new hire training, you were probably educated about the testing process, and you should have learned that leaving the testing site is viewed as a refusal to test at that time, but for many people, that training was years earlier and not all of the information is always remembered. A refusal to test is not just refusing to take the test; a refusal to test is also defined as leaving the testing site before the test is completely over. So, don’t leave the lab until you have completed the test and have been told by the staff that you are free to go.
Tip 6. If you have ever experienced a shy bladder circumstance, document it. If you are called for a drug test, but you’re unable to provide an adequate amount of urine for testing, the collector will report your test as a “refusal to test”. However, the drug testing regulations allow the Medical Review Officer to cancel a test if the MRO determines that a medical issue precluded you from providing an adequate specimen. That is, the FAA may recognize the excuse of a sickness or a shy bladder situation for those employees who are unable to produce an adequate specimen during a drug test. However, the FAA is very specific in what it will consider adequate to excuse a failure to provide a urine specimen because of a medical condition. If there is a physiological medical explanation for your body’s failure to give the specimen, this may be something that a competent medical professional can identify after the test and such explanations may include a urinary tract infection, an obstruction, or nerve problems. Otherwise, if the explanation for your inability to produce an inadequate specimen stems from a mental reason – don’t think mental disorder here, but rather a social phobia – then the FAA will only accept this reason as a valid excuse if the mental condition can be shown to have existed prior to the test. In other words, the FAA will not consider a shy bladder that occurs for the first time during a drug test to be a valid reason to cancel the test; however, if there is documentation of a pre-existing condition or of previous similar-type incidents, even if not resulting yet in any diagnosis, the MRO may accept the psychological reason as a valid medical explanation for failing to successfully complete the test.
Tip 7. Pay attention to how the test is being conducted while it’s being conducted. Being informed and being your own advocate in the testing process can be an important part in protecting your interests. Naturally, it’s hard to know what is being done right or wrong in the collection process because it is not something that we learn or refresh on continuously, and for some, it’s rare to even be called to submit to a test. It’s only after the test is complete and days later you are notified that you refused a test or your test came back positive that you start to go over every detail of what was done and realize that the regulations were not followed by someone in the process, whether it be the front desk nurse, the collector, the lab, the Medical Review Officer, or your employer. Staying educated on what happens in the testing process can help if you’re called for a test, then during the test you note something wrong, you’re able to speak up about it at the time, instead of trying to overcome the FAA’s natural presumption of testing correctness in hindsight.
One of the pieces of advice that the government gives us is to “comply, then complain.” It’s not bad advice. If you think you were improperly selected for a test, take the test and then state your grievance to your employer. If the collector is not keeping control of the Custody and Control Form and the collection cup, if the collector breaks the seal of the cup without you present, or if you both have not maintained visual contact with the bottles to the extent possible until after they are sealed, speak up and document what was done.
A piece of advice that we routinely give in our presentations is to be proficient in your knowledge of the drug and alcohol testing regulations and the program that covers you. Reading up on the drug and alcohol testing process every once in a while is a good idea to keep you informed and aware of the process so that if the request does come, usually by surprise, you are ready and you have the fighting chance to protect your certificate if something goes wrong. Among other resources, DOT’s Office of Drug & Alcohol Policy & Compliance (ODAPC) maintains a website that can help refresh and update your knowledge of the drug and alcohol testing requirements and process. https://www.transportation.gov/odapc
Despite the FAA’s kinder and gentler approach to enforcement with the advent of its Compliance Philosophy Program, the prospect of certificate suspension and revocation is alive and well, especially with logging issues. Here’s a situation that played out a number of years ago that remains instructive today:
Has this ever happen to you? A pilot squawks a minor aircraft control-input problem, but maintenance personnel can’t find anything wrong, must a logbook entry be made? An enforcement case against an airline mechanic answers this question, and clarifies the regulatory requirement for the logging of aircraft maintenance. According to the National Transportation Safety Board, the answer is “yes.”
The regulation involved is CFR 121.701(a). In very general language, it requires that: “Each person who takes action in the case of a reported or observed failure or malfunction of an airframe, engine, propeller, or appliance that is critical to the safety of flight shall make, or have made, a record of that action in the airplane’s maintenance log.” It obviously imposes this requirement on maintenance personnel. The more intriguing question is whether an “observed failure or malfunction of an airframe” is “critical to the safety of flight” if no problem is found.
The mechanic involved in this case had his airframe and powerplant mechanic certificate suspended for 15 days by the FAA for violation of this regulation. According to the facts of the case, he was sent by his employer to look at a Boeing 737 which had a possible flap problem. A pilot had reported that the airplane required right-hand aileron input to maintain straight and level flight. When the mechanic arrived, he and another mechanic inspected the left and right inboard aft flap assemblies. They deployed and retracted the flaps. They could find nothing wrong. No entry was made in the maintenance records for the airplane.
The airplane went out on another leg, and returned the same day. The problem persisted. The mechanic again deployed and retracted the flaps, and inspected the right inboard aft flap assembly, this time applying deicing fluid to the flap tracks. Again, no entry was made in the maintenance records for the airplane.
There was some evidence in the case that the mechanic was under some pressure from the pilot. The pilot did not want the matter “written up” because he wanted to make the final leg, promising to write it up when the airplane returned to Anchorage. There was also evidence that the mechanic consulted with his supervisor, the director of maintenance, causing the law judge to comment on the mechanic’s “efforts to do apparently all he could do.” But, in the final analysis, the law judge concluded that the mechanic violated the regulation by not making the logbook entries.
The mechanic appealed the FAA suspension to the NTSB. In the appeal, the mechanic raised this issue. He maintained that no entries were made because, according to the mechanic, the problem did not amount to something “critical to the safety of flight” within the meaning of FAR 121.701(a). Nothing was found amiss. The malfunction was not confirmed. The mechanic’s argument did not prevail. The Board sustained the suspension.
The Board specifically rejected the interpretation that the regulation requires maintenance entries only with respect to reported or observed failures or malfunctions that are critical to flight safety. “Rather, the regulation imposes a duty to make a log entry whenever a reported or observed failure in a component or system that is critical to flight safety results in someone having taken action to identify and correct it. In other words, it is not the actual problem the aircraft has experienced, but the discrepancy’s location that triggers the necessity for the recording of responsive action.” According to the Board and the FAA, if a pilot squawks a component or system that is critical to flight safety, the squawk must be cleared in a logbook entry even if nothing is found.
Your Livelihood at Risk
Almost anyone working in the aviation maintenance industry is acutely aware that there are regulations, manuals, bulletins, and directives that must be consulted, followed, and complied with in the performance of aircraft maintenance. This is a regulatory responsibility as well as a practical safety responsibility. But, how many of us are as acutely aware of the consequences of our failure to properly follow the instructions contained in those publications? Certainly, it is simple to understand that there are safety-related consequences associated with maintenance that you perform, but what other consequences may you need to be prepared for?
Two possible consequences come quickly to mind: first, the potential liability for the damages and injuries that may result from the maintenance that you performed; and second, the potential to lose your job. A third consequence that can sometimes send us scrambling to know what to do is the potential consequence that the FAA may take a legal enforcement action to suspend or revoke your FAA certificate, or to collect a civil monetary fine from you, based on allegations that you violated a regulation in the performance of aviation maintenance.
Years ago, Congress gave the FAA the authority to promulgate minimum standards and regulations to promote aviation safety. Congress also gave the FAA the authority to enforce compliance with those standards and regulations by allowing the FAA to investigate information indicating a violation and to impose sanctions on persons who have committed a violation. The FAA exercises its sanction authority in many different ways, ranging from a compliance action determination to a referral for criminal prosecution. In between these extremes are administrative actions, certificate actions, and civil penalty actions.
The compliance action noted above stems from what the FAA calls their New Compliance Philosophy. It is a well-intentioned policy that, on its face, allows for greater prosecutorial discretion in taking less formal action against regulated persons for noncompliance. The FAA acknowledges that some deviations arise from simple mistakes or misunderstandings and that future compliance might be better secured through remediation rather than legal enforcement. That seems like a sound policy. We caution, however, that the mere existence of the policy should not influence airmen to let their guard down when dealing with an FAA investigation.
Investigations generally start when an FAA inspector receives information that a violation of the regulations may have occurred, or they can begin with an FAA inspector who comes across evidence of a violation during routine surveillance or while investigating an aircraft accident. At the outset of an investigation, the inspector will usually attempt to interview the target of the investigation, or at the very least, send him or her a Letter of Investigation (LOI). In accordance with the Pilots Bill of Rights, which extends to certificated mechanics, the inspector is required to notify the targeted individual about the nature of the investigation, and among other things, indicate that an oral or written response to the inspector is not required. Whether or not it’s advisable to talk to an inspector, or reply to an LOI, is debatable. However, the consequences for responding to the FAA without thoughtful guidance can be dire if unintentional or good faith admissions against interest are made—think certificate suspension or revocation or a hefty fine without any meaningful ability to defend. We therefore, always recommend that anyone caught up in this process seek competent counsel before speaking with an FAA inspector and before responding to the FAA inspector's LOI.
Once the investigation is completed the FAA will determine what action to take, if any. There are rare instances where no action is taken at all, such as when there turns out to be no reliable or credible evidence that a violation was committed or if the supposed violator is misidentified. As previously noted, the inspector has other non-legal enforcement options available, including a request for reexamination or a compliance action and administrative action, but let’s focus on enforcement action. If the inspector recommends legal enforcement, the file, otherwise known as the Enforcement Investigation Report or EIR, is forwarded through the FAA inspector's managers to the FAA's legal office to initiate the legal enforcement action. Here, the law affords the person very specific, important procedural rights. That is, the law requires that before taking the action, the FAA must advise the person of the specific charges or other reasons for the action and, except in an emergency, must provide the person with an opportunity to answer or explain why the action should not be taken. This advisement from the FAA comes in a Notice of Proposed Certificate Action or a Notice of Proposed Civil Penalty, and the FAA gives the person several options for responding, including the option to attend an informal conference with an FAA attorney to discuss the charges made by the FAA. The person may appear at the conference on his or her own, or be represented by an attorney. The conference may be held telephonically or in person at any of the FAA regional offices or FAA headquarters office. How to handle the informal conference is a strategic question.
If the matter is not settled or dropped after this right to be heard has been fulfilled, the FAA will issue an order, which the person then may appeal to the National Transportation Safety Board (NTSB). Once an order is appealed, the case will be assigned to an NTSB administrative law judge who will hold a trial-type hearing at which the FAA bears the burden of proving the charges alleged in the FAA’s order. The person being charged will have the opportunity to offer evidence in defense against those charges, including calling witnesses and presenting documentary information. The NTSB's rules allow the person to represent themselves at this hearing, or they may appear with and be represented by an attorney. At the conclusion of the hearing, the judge issues an oral decision, and either affirms, modifies, or reverses the FAA’s order. If either the FAA or the person is dissatisfied with the judge's decision, a further appeal may be taken to the full five-member board of the NTSB, and even further appeals may be available after in the federal appeals courts.
Many aviation maintenance personnel have found themselves caught up in this legal enforcement process, and have been faced with making tough decisions whether to spend time and money to defend themselves against the FAA's action. At the core of all this is the risk that it poses to their continued ability to maintain a livelihood. Many of these cases have involved first-time, inadvertent incidents where safety has not been seriously compromised. And while we’re seeing many cases handled with compliance actions, it’s not a given. There is a cadre of FAA attorneys available that can make a "federal case" out of most any incident, often at the bidding of an FAA inspector that is not fairly evaluating the case. Unfortunately, because these maintenance personnel may not fully understand their rights and the defensive options available to them or they don't have the resources to mount a defense, they may feel compelled to accept the FAA's action and suffer the consequences, including a suspension or civil penalty and a permanent mark on their FAA record.
I think that most of us would agree that those who intentionally violate the regulations or seriously compromise safety should be subject to vigorous FAA enforcement. It is an effective FAA tool in ensuring compliance with the regulations designed to keep the system safe. This makes sense, as the threat of FAA enforcement for a violation of a regulation that impacts safety is a meaningful deterrent. However, the system is not always even handed or fair and sometimes well-intentioned mechanics get caught up in the enforcement vortex. Mechanics and other aviation maintenance professionals should, of course, always strive to follow the FAA regulations and associated guidance material, and to keep up to date with maintenance procedures and standards, but sometimes mistakes or misunderstandings occur.
If you find yourself the target of an FAA investigation, at a minimum, you should be familiar with the enforcement process and understand your basic rights. Your livelihood may depend on it.
Copyright © Yodice Associates 2018
Kathy Yodice is the Managing Partner of Yodice Associates, a private practice law firm with a special emphasis on aviation law. She has more than 30 years experience representing airman in FAA enforcement actions, regulatory compliance matters, accident investigations, and aviation-related business issues.
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