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.
1/9/2019 12:19:44 pm
The maintenance personnel involved in this repair/alteration should have consulted their local FSDO PMI for guidance on using the fuel bladder "shell" as a fluid containing vessel. This probably would have resulted in getting some engineering approval and issuing a FAA Form 8110-3 to either use the existing "shells" or requiring new tanks being fabricated from maybe thicker or even a different allow . We have made some fairly unusual modifications on certified aircraft here, and always get our local FSDO involved for guidance to avoid such issues like this. This of course would have been approved by the FAA via the Field Approval process.
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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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