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.
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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